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Rouse v. Oklahoma Merit Protection Comm'n

oklahoma

Oklahoma Supreme Court

ROUSE v. OKLAHOMA MERIT PROTECTION COMMISSION2015 OK 7Case Number: 112637Decided: 02/17/2015THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHESTER ROUSE, Petitioner, v. OKLAHOMA MERIT PROTECTION COMMISSION, AND GRAND RIVER DAM AUTHORITY, Respondents. APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY Honorable Rebecca J. Gore, Trial Judge ¶0 The Grand River Dam Authority terminated the employment of the petitioner, Chester Rouse, after several years of evaluations of inefficiency, incompetence, and misconduct, and after three significant events which occurred at its coal fired plant. Rouse appealed the termination to the Oklahoma Merit Protection Commission and then to the district court. The administrative appeal and the district court appeal each resulted in the affirmation of the termination. Rouse appealed and we retained the appeal, and affirm the administrative appeal and the trial court. OKLAHOMA MERIT PROTECTION COMMISSION AFFIRMED; TRIAL COURT AFFIRMED. James C. Thomas, William D. Thomas, Tulsa, Oklahoma, for Appellant. J. Heath Lofton, Vinita, Oklahoma, for Appellee. KAUGER, J.: ¶1 This is the second appeal resulting from the Grand River Dam Authority's (GRDA) termination of the appellant, Chester Rouse (Rouse/employee). The first case, Rouse v. Grand River Dam Authority, 2014 OK 39, 326 P.3d 1139, involved the issues of whether the employee: 1) was barred by sovereign immunity from bringing a federal claim under the Fair Labor Standards Act, 29 U.S. C. §§201 et seq.; and 2) could assert a tort claim under Oklahoma law. The unanimous Court affirmed the trial court's dismissal of the employee's lawsuit because we determined that legislatively authorized administrative remedies were available through an appeal to the Oklahoma Merit Protection Commission (OMPC). The employee appealed to the OMPC, and then to the district court. This cause concerns the employee's appeal of the district court's order upholding the GRDA's termination of Rouse. ¶2 The employee raises 16 issues in his petition in error, some of which are either redundant, repetitive, related,1 or were not briefed on appeal.2 We consolidate the allegations of error into four succinct, broader encompassing issues. The four determinative issues are whether the trial court erred in: 1) its statutory interpretation and application of 74 O.S. 2011 §840-6.5;3 2) determining that the reasons for termination were not pretextual, or post hoc rationalizations; 3) determining that the employee was estopped from challenging the level of discipline imposed (termination); and 4) its review of the OMPC's ruling and the introduction of evidence. After consideration of all of the dispositive issues, we affirm the trial court. FACTS ¶3 The appellee, the GRDA terminated the employment of the appellant, Chester Rouse (Rouse/employee) on February 17, 2012. The GRDA had employed Rouse at its electricity generating, coal fired plant in Chouteau, Oklahoma, since May of 1982. Rouse started as an auxiliary equipment operator, and in 1984 he was promoted to the position of control room operator where he remained until 2005. In November of 2005 he was made operations shift supervisor, a position in which he remained until he was terminated. Nothing in the record indicates specific performance issues during his tenure at GRDA prior to 2005. However, it appears that after he was placed in the position as of shift supervisor in November of 2005, his performance became a reoccurring issue. ¶4 In 2006 and 2007, his evaluations noted he was taking a lot of extra time on smoke breaks. In 2008, he was told that he was wasting excessive time smoking and reading fictional books while on duty. Apparently, Rouse spent so much time in the designated smoking room, the room became referred to as "Jay's Office" by other employees. Rouse's 2008 performance reviews rated him as needing improvement, inefficient, guilty of misconduct, and needing to set a better example for his crew. His 2009 evaluations again noted the need to set a better example for his crew. ¶5 Rouse was suspended without pay for seven working days on July 19, 2010. The reasons given for the suspension included: wasting time smoking and reading fictional books at work, having evaluations rated as needing improvement because of inefficiency and misconduct, lack of setting a good example for employees, negative and unprofessional behavior, and using bitter language. The GRDA initially considered a ten day suspension, but reduced it to only seven days after Rouse expressed remorse and commitment to improve in behavior and leadership. ¶6 At the time of his discharge, Rouse was a classified employee. The GRDA provided Rouse with notice of proposed disciplinary action of termination on January 11, 2012, and a pre-termination hearing was conducted on January 20, and February 6, 2012, giving Rouse an opportunity to respond. By letter dated February 17, 2012, Rouse was officially terminated based on Merit Rule 530:10-11-914 and 74 O.S. 2011 §840-6.5.5 ¶7 The letter stated that Rouse was being terminated for inefficiency, misconduct, insubordination, inability to perform the duties of the position, and violations of the Oklahoma Personnel Act. Additionally, it referenced specific instances such as Rouse's: 1) incomplete work task assignment from August of 2011; 2) incompetence in handling an alarm event occurring on December 13, 2011; and 3) inattentiveness to a costly tube leak/overflow event on December 14, 2011. It also referenced the fact that staff members reported that Rouse was regularly unable to identify key problems and take the necessary actions appropriate for his position and it referenced the prior suspension without pay in 2010. ¶8 Just prior to the termination, on December 1, 2011, the GRDA got a new CEO and Director of Investments, Dan Sullivan (CEO). On December 15, 2011, the day after a significant flooding event had occurred and two days after a significant boiler chemistry event had occurred, Sullivan met with Rouse at Rouse's request. Apparently, Rouse requested to switch to an unclassified position, a switch which he previously had been denied. In an otherwise cordial meeting, Sullivan testified at the very end of their meeting Rouse made veiled threats about taking further action on a wage claim, but he really did not recall exactly what was said or explain what he meant by "veiled threats." ¶9 After receiving the February 17, 2012, termination letter, Rouse contacted the GRDA's human resources department about retiring in lieu of termination. Even though he was terminated, the GRDA's CEO, Sullivan, in deference to his years of service, accommodated Rouse by halting the termination and permitting him to retire instead, and even waiving the sixty day notice period. As a result, Rouse secured thousands more than he would have had he been terminated including his full salary and longevity pay until his retirement date of March 1, 2012, in addition to other retirement benefits such as an insurance subsidy of $200.00 that is not available to terminated employees. ¶10 The employee appealed his termination to the OMPC on March 9, 2012, alleging that he was fired as retaliation for cooperating with a Department of Labor (DOL) investigation which had resulted in the GRDA having to pay some employees back wages in May of 2010, for asking employees to show up 10-15 minutes before their shifts started so that they would start their shifts on time. The time frame for the back wages was January of 2008 to January of 2010. Rouse received a total of $506.10 before taxes as a result of the investigation.6 ¶11 On appeal, Rouse sought reinstatement, as well as back pay and a promotion to an unclassified position. An administrative law judge (ALJ) held a two day trial on June 13-14, 2013, and issued a final order on August 16, 2013, finding that the GRDA had proven, by a preponderance of the evidence, just cause to discipline the employee for insubordination, inefficiency, and inability to perform his duties and that the discipline imposed was just. ¶12 During the proceeding, the GRDA argued that Rouse had agreed to waive an appeal to the OMPC in exchange for being allowed to retire rather than be terminated. However, the judge determined there was insufficient evidence of a "meeting of the minds" to such an agreement which would bar an appeal, but that Rouse accepted the benefits of retirement without taking any steps to clarify any misunderstanding even after the GRDA took steps to advice Rouse and his attorney of its understanding that an appeal right was waived. Accordingly, the judge determined the Rouse should be estopped from challenging the level of dicipline imposed (termination) but that even if such estoppel were inapplicable, the cumulative effect of his misconduct, the serious nature of the incidents concerned, and Rouse's refusal to acknowledge his misconduct or take any responsibility thereof justified termination. ¶13 On October 1, 2013, the OMPC issued its final order upholding the ALJ's decision and denying reconsideration. On October 7, 2013, the employee filed a petition for judicial review in the District Court of Mayes County, Oklahoma.7 ¶14 On February 20, 2014, the trial court affirmed the ALJ and OMPC. On March 11, 2014, the employee filed an appeal and on June 5, 2014, filed a motion for this Court to retain the cause. We granted the motion to retain on June 19, 2014, and the cause was assigned to this office on November 13, 2014. This Court has long been committed to the rule that an administrative decision will be affirmed on appeal if it is supported by substantial evidence8 and it is not arbitrary or capricious.9 PURSUANT TO 74 O.S. 2011 §840-6.5, WILLFULNESS OR CULPABLE NEGLIGENCE IS NOT REQUIRED TO JUSTIFY TERMINATION FOR JUST CAUSE. ¶15 The employee argues that: 1) pursuant to 74 O.S. 2011 §840-6.5,10 the GRDA must prove that the employee acted with an element of willfulness or culpable negligence to justify any cause for termination of a classified employee; and 2) because the GRDA offered no specific evidence of Rouse's willful conduct or culpable negligence, the termination must be reversed. The GRDA contends that such intent or culpability is not required. ¶16 The pertinent language of 74 O.S. 2011 §840-6.5 provides that: Any employee in the classified service may be discharged . . . for misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed, willful violation of the Oklahoma Personnel Act, the Merit Rules for Employment or of the rules prescribed by the Oklahoma Merit Protection Commission, conduct unbecoming a public employee, conviction of a crime involving moral turpitude, or any other just cause. . The purpose of the OMPC is to encourage prompt and equitable resolutions of grievances at the lowest possible level and encourage resolution of disputes quickly and informally.11 It also provides a system for the prompt, fair, and equitable disposition of appeals by employees.12 ¶17 The statute is plain and unambiguous. When a statute is plain and unambiguous, there is no need to resort to statutory construction13 nor does any justification exist for the use of interpretive devices to fabricate a different meaning.14 The class of employees affected by the statute is clearly classified employees. Such employees can be discharged for any of a litany of things. The only conduct requiring willful behavior under the clear terms of the statute is "willful violation of the Oklahoma Personnel Act, the Merit Rules for Employment or of the rules prescribed by the Oklahoma Merit Protection Commission." Nothing in the terms of the act or its stated purposes or any previous decision by this Court requires that an employee terminated for "just cause" must, as Rouse argues, have been proved to have acted with an element of willfulness or culpable negligence. Accordingly, neither the OMPC nor the district court erred in refusing to infuse such a requirement into this cause. THE RECORD REFLECTS THAT THE GRDA'S REASONS FOR TERMINATION WERE NEITHER PRETEXTUAL NOR POST HOC RATIONALIZATIONS. ¶18 The OMPC found that, despite the employee's valiant efforts to establish that the termination was pretextual to cover the CEO's alleged real motivation for firing Rouse as retaliation for filing a wage claim, there was "simply no evidence to support this." The trial court determined that he failed to establish any pretext because Rouse admitted to: 1) not completing the assignment given to him in August of 2011; 2) neglecting to check the equipment during his shift on December 14, 2011 and; 3) he did not specifically instruct his crew to check the equipment. Additionally, the trial court found that because of these same admissions by Rouse, he failed to demonstrate that the offered reasons for termination were post hoc rationalizations. ¶19 Rouse argues that the evidence is clear that his supervisors had knowledge that he complained to the DOL for not getting paid to show up for shifts 10-15 minutes early, and that it was not until he did complain, that, for the first time during his thirty year tenure, he faced discipline. He also insists that he was targeted to be discharged. GRDA argues that it had multiple, valid reasons for discharge unrelated to any DOL complaint and that the reasons for supporting discharge have been consistent with his poor evaluations. ¶20 Pretextual reasons for an employer's termination of an employee come into question when an employee is alleged to have been terminated in retaliation for things such as filing a workers compensation claim,15 or, in retaliation for reporting an employer's violation of the law and/or public policy.16 An employer can rebut an employee's claim by showing that the discharge was for a legitimate non-retaliatory reasons which obviously includes the inability to perform the assigned duties.17 This is precisely what the GRDA did in this cause. ¶21 The only evidence in the record supporting Rouse's claim that supervisors and the CEO knew that he filed a complaint with the DOL and that he was fired in retaliation for doing so, was Rouse's own "because I said so" testimony.18 This evidence is countered with substantial evidence of years of inefficiency, insubordination, and inability to perform the duties of his position, all of which were admitted to by Rouse. The wage claim was resolved by 2010, nearly two years before Rouse was terminated, and no one knew who actually called the DOL to complain about not getting paid for showing up 15 minutes early. ¶22 Additionally, the cited reasons for termination were supported by testimony and documentation because Rouse: 1) failed to complete a work assignment that every other supervisor managed to complete on time; 2) was inattentive and failed to react to a severe water chemistry condition on December 13, 2011; and 3) failed to take action during a water leak on December 14, 2011, that destroyed and damaged equipment.19 The GRDA was entitled to terminate Rouse for just cause and it appears that it did so and the employee has made no showing otherwise. Even if the three reasons as stated above had not occurred, the employee's inefficiency of the repetitive behavior of wasting time smoking and reading year after year while at work would have been more than adequate just cause for termination. Accordingly both the trial court and the OMPC are affirmed on this issue. THE APPLICATION OF ESTOPPEL IS IMMATERIAL. ¶23 The employee was allowed to appeal his termination, despite accepting retirement benefits in lieu of termination. However, he argues that he should not have been estopped from challenging the level of discipline imposed -- termination. He also contends that applying estoppel would be unfair and contrary to public policy in this cause. The GRDA argues that whether estoppel was appropriately applied to this cause is immaterial. We agree. ¶24 Estoppel is an equitable doctrine used to prevent one party from taking a position which is inconsistent with an earlier action that places the other party at a disadvantage.20 The employee was not estopped from appealing his termination and the GRDA's decision to terminate was supported by the evidence and was not arbitrary or capricious. Had Rouse's conduct, insubordination, inefficiency and inability to perform his duties not justified termination, then the application of estoppel may have been material to determining what level of discipline, if any, was appropriate. Nevertheless, the ALJ additionally determined that regardless of the applicability of estoppel, termination was appropriate. ¶25 Even if estoppel were incorrectly applied to this cause, because the GRDA's decision to terminate was supported by sufficient evidence, the application of estoppel was immaterial. Furthermore, the employee, while being represented by his attorney, accepted all the benefits of retirement and the financial effects of the termination were abandoned by the GRDA. If estoppel were applicable to this cause, it is the GRDA who should have been able to rely on it. However, the doctrine of estoppel is not ordinarily applicable to state agencies operating under statutory authority.21 THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE OF PRIOR DISCIPLINE. ¶26 The employee argues that he was denied due process because he was not provided with a specific written statement that his prior evaluations of spending too much time smoking, reading fictional books, and other incompetence would be used against him as a reason for termination after the events in December of 2011. He also then incongruously argues that he should have given some type of progressive discipline without termination.22 The GRDA contends that his notice was adequate and that he was given progressive discipline leading to termination.23 Rouse's arguments regarding notice are unconvincing. ¶27 The facts demonstrate that since 2005, Rouse was progressively disciplined culminating in termination in 2012. In 2006, 2007, 2008, and 2009, his evaluations reflected his inefficiency, and insubordination. By 2010, the cumulative effect of these evaluations led to suspension without pay. By 2012, the cumulative effect of the suspension without pay, coupled with inability to perform assigned tasks and other significant incidents led to termination.24 To argue that there was no progressive discipline imposed ignores the facts altogether. Nevertheless, progressive discipline is not mandated in all causes, nor are public employers required to prove that some less severe disciplinary act would be ineffective before the imposition of a more stringent penalty.25 The system is designed to be conformable to a variety of circumstances and it is not a rigid program.26 ¶28 The minimal statutory notice required by the employer is found in 74 O.S. 2011 §840-6.4 and it provides in pertinent part: . . .B. The procedures for a pretermination hearing shall be: 1. Notice of a pretermination hearing shall be served by actual delivery or by certified or registered mail service at least seven (7) calendar days prior to the scheduled pretermination hearing; 2. Said notice of the pretermination hearing shall state all grounds for termination and shall include a general summary of evidence or physical evidence to support each of the stated grounds for termination; . . . In the pretermination letter issued to Rouse on January 11, 2012, and attached to this opinion as an exhibit, Rouse was expressly notified that he had been disciplined in July of 2010 for a suspension without pay for inefficiency, misconduct, insubordination and inability to perform his job duties. He knew exactly why he was suspended in 2010 without pay because he actually had a pre-suspension hearing at that time, which he participated in and he was actually suspended without pay. He was expressly notified that this suspension was one of the reasons he was being terminated in 2012, in addition to the other enumerated events outlined in the notice. The employee has made no convincing showing that the statute was not followed nor does he argue that the statutory directives are on their face inadequate. Accordingly, we must determine that the trial court did not err in admitting evidence of prior discipline to support its decision to terminate. CONCLUSION ¶29 An administrative decision will be affirmed on appeal if it is supported by substantial evidence27 and is not arbitrary or capricious.28 Pursuant to 74 O.S. 2011 §840-6.5,29 the GRDA was not required to prove that the employee acted with an element of willfulness or culpable negligence to justify the termination of its classified employee. The GRDA's reasons for termination were neither pretexual nor post hoc rationalizations, but were, instead, supported by substantial evidence. Estoppel was immaterial to this cause. Because the trial court did not err in admitting evidence of prior discipline, and the employee was given adequate notice of the reasons for termination, we affirm the OMPC and the trial court. OKLAHOMA MERIT PROTECTION COMMISSION AFFIRMED: TRIAL COURT AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 The stated issues as raised on appeal in the petition in error filed on March 11, 2014, are as follows: 1. The District Court committed error in its misapplication of the standard of review of agency decisions, as pronounced in the Oklahoma Administrative Procedures Act, 75 Oka. Stat. § 322, and simply rubber stamped the Merit Protection Commission's erroneous, adverse ruling. 2. The District Court committed error in its failure to recognize the clear evidence in the record that the ALJ exhibited personal bias against Appellant, classified employee of GRDA. 3. The District Court committed error in its failure to recognize the three stated reasons given by GRDA for Rouse's termination as being pretextual. 4. The District Court committed error in its failure to recognize the three stated reasons given by GRDA for Rouse's Termination were nothing more than post hoc rationalizations of the real reason Rouse was terminated. 5. The District Court committed error in isolating phrase in 74 Okla. Stat. §840-6.5, and concluding that a classified employee "may be discharged for misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed." 6. The District Court committed error in not reading the statute as a whole and reading all parts of the statute together, thereby concluding that under 74 Okla. Stat. §840-6.5, a classified employee may be disciplined for "specific acts or omissions," only when "specific acts or omissions" rise to the level of "misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed." 7. The District Court committed error in holding that the just cause statute does not require employing agency to prove some level of willfulness or culpable negligence in relationship to the alleged "specific acts or omissions." 8. The District Court committed error in ignoring the settled law on the issue of estoppel, upholding Merit Commission's misapplication of the estoppel doctrine, that Rouse was estopped from challenging his termination by GRDA. After the court's error as a matter of law, the court then compounded its error by ruling that petitioner was not prejudiced by the ALJ's ruling on estoppel. 9. The District Court committed error in upholding the Merit Commission's error which permitted GRDA to introduce evidence against Rouse, during just cause hearing which had not be referenced in the 74 Okla. Stat. § 840-6.5 due process notice. 10. The District Court committed error, as a matter of law, that allowed GRDA to introduce evidence of prior discipline against classified employee, during just cause hearing. 11. The District Court committed error in not recognizing that 74 Okla. Stat. §840-6.5 was intended to be classified employee's due process notice of the specific charges against classified employee; and that this "due process required notice which reasonably informs" person that his protected interest "may be adversely affected." Hagar v. State, 1999 OK CR 35, ¶14, 990 P.2d 894, 898. 12. The District Court committed error in upholding evidentiary decision of Merit Commission which allowed Counsel for GRDA to introduce evidence of prior discipline of Appellant, during the "just cause" part of the hearing, without giving Appellant adequate notice. 13. The District Court committed error in not ruling that GRDA's introduction of evidence of prior discipline violated Appellant classified employee's most basic right to constitutional due process. 14. The District Court committed error in upholding the three stated grounds for terminating Appellant Rouse against Rouse's claim that the language describing the grounds of termination were far too general to satisfy the requirements expressed in 74 Okla. Stat. § 840-6.5. 15. The District Court committed error in upholding the three stated grounds for terminating Appellant Rouse against Rouse's claim that the stated grounds were not supported by substantial evidence, reading the record as a whole. 16. The District Court committed error in upholding the decision of ALJ in denying Appellant's offer of exhibit that would add greater clarity to one of the grounds of GRDA's termination of Rouse. 2 To the extent that each of its allegations of error were not contained within the arguments in its brief, they are waived. Parties waive issues by failing to brief them. Johnson v. Ford Motor Co., 2002 OK 24, ¶ 1, fn. 2, 45 P.3d 86; Burrows v. Burrows, 1994 OK 129, ¶ 3, 886 P.2d 984; American First Abstract Co. v. Western Info. Syst., Inc., 1987 OK 24, ¶ 11, 735 P.2d 1187. 3 74 O.S. 2001 §840-6.5 provides in pertinent part: C. Any employee in the classified service may be discharged, suspended without pay for not to exceed sixty (60) calendar days, or demoted by the agency, department, institution, or officer by whom employed, for misconduct, insubordination, inefficiency, habitual drunkenness, inability to perform the duties of the position in which employed, willful violation of the Oklahoma Personnel Act, the Merit Rules for Employment or of the rules prescribed by the Oklahoma Merit Protection Commission, conduct unbecoming a public employee, conviction of a crime involving moral turpitude, or any other just cause. Employees in the classified service, upon final conviction of, or pleading guilty or nolo contendere to, a felony shall be discharged if the felony is job-related pursuant to Section 24.1 of Title 51 of the Oklahoma Statutes. Before any such action is taken against a permanent classified employee, the employing agency, department, institution or officer shall provide the employee with a written statement of the specific acts or omissions that are causes or reasons for the proposed action, an explanation of the agency's evidence, and an opportunity to present reasons why the proposed action is improper. 4 Merit Rule 530:10-11-91 provides: Conduct of classified employees (a) Every classified employee shall fulfill to the best of his or her ability the duties of the office or position conferred upon the employee and shall behave at all times in a manner befitting the office or position the employee holds. In performing official activities the classified employee shall pursue the common good, and, not only be impartial, but act so that there can be no question of impartiality. (b) A classified employee shall not engage in any employment, activity or enterprise which has been determined to be inconsistent, incompatible, or in conflict with his or her duties as a classified employee or with the duties, functions or responsibilities of the Appointing Authority by which the person is employed. (c) Each Appointing Authority shall determine and prescribe those activities within applicable laws, which, for employees under its jurisdiction, will be considered inconsistent, incompatible or in conflict with their duties as classified employees. In making this determination, the Appointing Authority shall give consideration to employment, activity or enterprise which: (1) involves the use for private gain or advantage of state time, facilities, equipment and supplies; or, the badge, uniform, prestige or influence of one's state office or employment, or (2) involves receipt or acceptance by the classified employee of any money or other consideration from anyone, other than the state, for the performance of an act which the classified employee would be required or expect to render in the regular course or hours of state employment or as a part of the duties as a state classified employee, or (3) involves the performance of an act which may later be subject directly or indirectly to the control, inspection, review, audit or enforcement by such classified employee. (d) Each classified employee shall devote full time, attention and effort to the duties and responsibilities of his or her position during assigned hours of duty. 5 Title 74 O.S. 2001 §840-6.5, see note 3, supra. 6 Apparently, Rouse is the person who called the DOL and complained. A formal complaint was never filed, but the DOL did investigate and order some minimal back pay to some employees. The evidence in the record reflects that, prior to Rouse's dismissal, no one even knew that he was the one who made the complaint, although he insists otherwise. 7 Title 75 O.S. 2011 §318 provides in pertinent part: A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. . . . B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court. 2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, naming as respondents only the agency, such other party or parties in the administrative proceeding as may be named by the petitioner or as otherwise may be allowed by law, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title. . . . 8 State of Oklahoma ex. rel. Oklahoma Department of Agriculture v. Yanes, 1987 OK 124, ¶20, 755 P.2d 611; Corporation Commission v. Okla. State Personnel Bd., 1973 OK 94, ¶15, 513 P.2d 116, Pannell v. Farmers Union Co-Op Gin Assn, 1943 OK 256, ¶8, 138 P.2d 817. 9 In Cox v. State ex rel. Dept. of Human Services, 2004 OK 17, ¶1, 87 P.3d 607, we stated that the factual determination to uphold an employee's discharge was clearly erroneous in view of the reliable, material, probative and substantially competent evidence or arbitrary or capricious. Title 75 O.S. 2011 §322 provides: (1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the 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, as defined in Section 10 of this act, 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. (2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue. (3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant. 10 Title 74 O.S. 2011 §840-6.5, see note 3, supra. 11 Title 74 O.S. 2011 §840-6.2 provides in pertinent part: . . .A. The Oklahoma Merit Protection Commission shall establish standard internal agency grievance resolution procedures for classified state employees. The procedures shall encourage prompt and equitable resolution of grievances at the lowest possible level within the employing agency. . . . . . . E. The internal agency grievance resolution procedures established by the Oklahoma Merit Protection Commission shall contain the following minimum requirements: 1. Procedures encouraging resolution of disputes within the agency quickly, informally and at the lowest possible level;. . . 12 Title 74 O.S. 2011 §840-6.5 provides in pertinent part: A. It is the purpose of this section to provide a system for the prompt, fair, and equitable disposition of appeals by permanent classified employees who have been demoted, suspended, or discharged. Further, it is the intent of this section that all decisions rendered as a result of this procedure shall be confined to the issues submitted for decision and consistent with the applicable laws and rules. 13 Twin Hills Golf & Country Club, Inc. v. Town of Forrest Park, 2005 OK 71, ¶6, 123 P.3d 5. Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of amibuity or conflict, are rules of statutory construction employee. Cox v. State ex rel.Oklahoma Dept. of Human Services, see note 9, supra. Because the statute is not ambiguous, the employee's argument that the statutory interpretation doctrines of noscitur a sociis and ejusdem generis is misplaced. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶¶18-19, 139 P.3d 873 [Noscitur a sociis asserts that the meaning of an unclear or ambiguous word or phrase should be determined by the words immediately surrounding it. Ejusdem generis applies when (1) a statute contains a specific enumeration; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration is made, usually following the enumeration; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.] 14 Strong v. State of Oklahoma, ex rel., The Oklahoma Police Pension and Retirement Board, 2005 OK 45, ¶8, 115 P.3d 889; Keating v. Edmondson, 2001 OK 110, ¶15, 37 P.3d 882; Neer v. State ex rel. Oklahoma Tax Comm'n, 1999 OK 41, ¶16, 982 P.2d 1071. 15 Buckner v. General Motors Corp., 1988 OK 73, ¶¶9-11, 760 P.2d 803. 16 For example in Gilmore v. Enogex, Inc, 1994 OK 76, 878 P.2d 360, an at-will employee attempted to sue his employer for refusing to submit to a random drug test which was determined not to be a violation of public policy. Pretext is shown by exposing an employer's weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons. Vaughn v. Epworth Villa, 537 F.3d 1147, 1153 (10th Cir. 2008); Rivera v. City & County of Denver, 365 F.3d 912, 925 (10th Cir. 2004). 17 Buckner v. General Motors Corp, see note 15, supra. 18 No formal complaint was ever filed. Rouse admitted that he made one phone call to an investigator one time. He did not show that anyone else even knew or suspected that he was the one who did it. 19 In addition to Rouse's own testimony admitting to going to the "smoke shack" 3-6 times during his shift and reading books while at work, the CEO testified he did not even know Rouse before their December 2011 meeting. The Assistant General Manager and the Plant Superintendent also testified as to Rouse's inattentiveness and lack of action which was also supported by written documentation over the years. Rouse insists that these three events were trivial, arbitrary and capricious, but the substantial evidence shows otherwise. 20 Strong v. State of Oklahoma, ex rel., The Oklahoma Police Pension and Retirement Board, see note 14, supra at ¶9; Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶19, 936 P.2d 943; Apex Siding & Roofing Co., v. First Fed. Savings & Loan Ass'n of Shawnee, 1956 OK 195, ¶6, 301 P.2d 352. The elements of equitable estoppel are: 1) a false representation or concealment of facts; 2) made with actual or constructive knowledge of facts; 3) to a person without knowledge of, or the means of knowing, those facts; 4) with the intent that it be acted upon; and 5) the person to whom it was made acted in reliance upon it to his detriment. Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, 31, 119 P.3d 192. 21 Strong v. State of Oklahoma, ex rel., The Oklahoma Police Pension and Retirement Board, see note 14, supra. 22 Rouse also insists that the scope of the December 13, 2011, water chemistry alarm event were increased. This argument is without merit. Rouse was specifically notified that the water conditioning event on December 13, 2011, concerned an alarm regarding a "severe water chemistry condition." Then, even though other employees, as well as the shift supervisor's log show that water chemistry conditioning is evaluated by pH level, dissolved oxygen, conductivity and sodium, apparently, Rouse apparently assumed that "water chemistry condition" referred only to water's pH level. The notice did not limit water condition only to a pH level, so Rouse's assumptions were clearly misplaced. Furthermore, he was allowed to cross examine the other employees and address the water chemistry condition fully at trial. 23 Due process requires adequate notice, a realistic opportunity to appear and the right to participate in a meaningful manner. Bailey v. Campbell, 1991 OK 67, ¶16, 862 P.2d 461. 24 Title 74 O.S. 2011 §840-6.3 provides: A. Each appointing authority shall establish written policies and procedures for progressive discipline of employees according to the rules established by the Oklahoma Merit Protection Commission. B. Progressive discipline is a system designed to ensure not only the consistency, impartiality and predictability of discipline, but also the flexibility to vary penalties if justified by aggravating or mitigating conditions. Typically, penalties range from verbal warning to discharge, with intermediate levels of a written warning, suspension or demotion. Absent mitigating circumstances, repetition of an offense is accompanied by a generally automatic progression to the next higher level of discipline. C. Each supervisor shall be responsible for applying discipline when necessary that is progressive in nature, appropriate for the offense, and equitable. Each supervisor shall consider aggravating or mitigating circumstances when determining the proper disciplinary action. Each supervisor shall use prompt, positive action to avoid more serious disciplinary actions. The Oklahoma Merit Protection Commission shall promulgate rules to establish the requirements and guidelines for discipline. D. The rules shall prohibit supervisors from considering incidents that occurred longer than four (4) years prior to an offense in order to move to a higher level of discipline. The prohibition shall not apply to incidents involving the following types of conduct: 1. Criminal activity; 2. Sexual misconduct and/or harassment; 3. Racially discriminatory behavior and/or harassment; 4. Threats or acts of violence against employees in the workplace; and 5. Drug and/or alcohol use or abuse on the job. 25 Cox v. State ex rel.Oklahoma Dept. of Human Services, 2004 OK 17, ¶18, 87 P.3d 607. 26 Oklahoma Dept. of Public Safety v. McCrady, 2007 OK 39, ¶14, 176 P.3d 1194. 27 State of Oklahoma ex. rel. Oklahoma Department of Agriculture v. Yanes, see note 9, supra; Corporation Commission v. Okla. State Personnel Bd., see note 8, supra; Pannell v. Farmers Union Co-Op Gin Assn, see note 8, supra. 28 Cox v. State ex rel. Dept. of Human Services, see note 9, supra. Title 75 O.S. 2011 §322 see note 9, supra. 29 Title 74 O.S. 2011 §840-6.5, see note 3, supra.

49623186-306a-4421-bb0d-7bcab3c7547d

Horton v. Hamilton

oklahoma

Oklahoma Supreme Court

HORTON v. HAMILTON2015 OK 6Case Number: 112254Decided: 02/10/2015THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PEGGY HORTON, an individual, Plaintiff/Appellant,v.JOHN J. HAMILTON, an individual, and ROBIN L. PECK, an individual, Defendants/Appellees,andFIRSTAR FINANCIAL GROUP OF CENTRAL OKLAHOMA, L.L.C., f/k/a FIRST FIDELITY FINANCIAL GROUP OF OKLAHOMA CITY, L.L.C., and ALLEN C. ENEGREN, an individual, Defendants. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Plaintiff purchased a Life Fund 5.1, L.L.C., Capital Appreciation Bond from a company that subsequently filed for bankruptcy. More than two years after purchase, the plaintiff sued the defendants in Oklahoma County District Court, Oklahoma, for misrepresentations and omissions in the sale of securities, fraud, breach of fiduciary duty, and negligence. The district court granted the defendants' motion for summary judgment, ruling that the statute of limitations for each of the plaintiff's claims had run before she brought suit. The plaintiff appealed the trial court's grant of summary judgment, and the Court of Civil Appeals affirmed. This Court granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS. Jerry D. Colclazier, Colclazier & Associates, Seminole, Oklahoma, for Plaintiff/Appellant.P.R. Tirrell, Denton Law Firm, Mustang, Oklahoma, for Defendant/Appellee John J. Hamilton.Klint A. Cowan, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Oklahoma, for Defendant/Appellee Robin L. Peck. TAYLOR, J. ¶1 The question before this Court is whether the district court erred in granting the defendants' motion for summary judgment based on the expiration of the statutory limitations periods on the plaintiff's claims. To answer that question, this Court must determine when the plaintiff's claims accrued and whether the statute of limitations for each claim ran or was tolled from the accrual date based upon the discovery rule. We hold that the defendants did not submit sufficient evidentiary material to support their arguments as to when the statute of limitations began to run on each claim, and we therefore answer the question in the affirmative. I. FACTUAL ALLEGATIONS ¶2 The following facts were alleged by the parties. In April of 2007, Plaintiff, Peggy Horton (Horton), received an unsolicited mailer to attend a retirement seminar sponsored by Firstar Financial Group of Central Oklahoma, L.L.C., (Firstar), a former defendant in the litigation.1 Firstar owner, John J. Hamilton, and employee Robin L. Peck presented the seminar. The defendants attempted to persuade Horton and others that their savings were not safe in banks; according to the presentation, the only safe investment was the defendants' capital appreciation bonds that yielded a 60% rate of return. The defendants followed up the seminar with private meetings in Horton's home. On September 18, 2007, Horton wrote a $100,000.00 check to purchase a Life Fund 5.1, L.L.C., Capital Appreciation Bond (the bond). Horton made the check out to A & O Life Funds. ¶3 Horton had reservations about the bond's riskiness, but Peck came to Horton's home and convinced her of the investment's safety. Relying on Peck's assurances, Horton did not withdraw her offer to purchase the bond. During that time, the Oklahoma Securities Commission (Commission) also called Horton to inform her that it suspected the defendants of fraud. The bond was issued on October 1, 2007. Horton received the bond on November 21, 2007. Despite Peck's initial reassurances, Horton began requesting her initial investment money back. She also worked with the Commission in the months following her purchase of the bond. It is unknown what information she gleaned from the Commission, but in September of 2009, Horton hired an attorney. ¶4 The bond was part of a Ponzi scheme. Horton lost her entire investment when Life Fund 5.1, L.L.C. filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois on September 2, 2009. Horton filed a proof-of-claim document with the federal bankruptcy court on September 15, 2009, detailing the fraudulent sale of her bond. II. PROCEDURAL HISTORY ¶5 On December 10, 2009, Horton filed a petition in the district court, asserting claims for the sale of unregistered securities in violation of the Oklahoma Securities Act (count I),2 the sale of securities by an unregistered broker-dealer or agent in violation of the Oklahoma Securities Act (count II),3 the sale of securities through misrepresentations or omissions in violation of the Oklahoma Securities Act (count III),4 common law fraud (count IV), breach of fiduciary duty (count V), and negligence and gross negligence (count VI).5 ¶6 The defendants jointly filed a motion for summary judgment, contending that Horton's remaining claims (counts III-VI) were barred by their corresponding two-year statutory limitations periods. The defendants presented only six facts they contended were undisputed.6 They argued that the statutes of limitations started to run on counts III-VI when Horton actively began trying to get her money back from the defendants, but failed to submit evidentiary material to show when Horton knew of or should have discovered the facts underlying her causes of action. Horton did not dispute any of the defendants' facts, but argued that other facts already in the record failed to establish when the statutes of limitations began to run. The district court agreed with the defendants and granted their motion for summary judgment. ¶7 Horton appealed the order granting summary judgment. The Oklahoma Court of Civil Appeals affirmed the district court, ruling that no factual disputes existed in the evidentiary materials as to when the limitations periods ran and that Horton was aware of the defendants' tortious conduct more than two years before she filed her petition. We granted the petition for writ of certiorari. III. STANDARD OF REVIEW ¶8 Summary judgment settles only questions of law. See Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. The standard of review of questions of law is de novo. Id. Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment will be reversed if reasonable people might reach different conclusions from the undisputed material facts or a party is not entitled to judgment as a matter of law. See Runyon v. Reid, 1973 OK 25, ¶ 15, 510 P.2d 943, 946. All reasonable inferences are taken in favor of the nonmovant. Jennings v. Badgett, 2010 OK 7, ¶ 4, 230 P.3d 861, 864. IV. ANALYSIS ¶9 The primary issue before this Court is whether the defendants submitted sufficient evidentiary material to establish when each of Horton's claims accrued and when the statute of limitations for each of those claims began to run. Our jurisprudence has recognized general rules in this area that govern all civil causes of action. Consol. Grain & Barge Co. v. Structural Sys., Inc., 2009 OK 14, ¶ 9, 212 P.3d 1168, 1171. We begin with the accrual date: "Civil actions can only be commenced . . . after the cause of action shall have accrued . . . ." 12 O.S.2011, § 92. The accrual date may be identified by statute, but it can only be present when each element of the cause of action has materialized. Consol. Grain, 2009 OK 14, ¶ 9, 212 P.3d at 1171. Generally, the statute of limitations begins to run from the accrual date. Id. However, the discovery rule may delay the start of the statute of limitations. Digital Design Grp., Inc. v. Info. Builders, Inc., 2001 OK 21, ¶ 17, 24 P.3d 834, 839 (holding that the discovery rule delays the running of the statute of limitations "until the injured party knows or, in the exercise of reasonable diligence, should have known of the injury"). ¶10 To grant summary judgment on the affirmative defense that a statute of limitations ran on a claim, the evidentiary material must show when the plaintiff knew or in the exercise of reasonable diligence would have discovered the act which gave rise to the claim. Redwine v. Baptist Med. Ctr. of Okla., Inc., 1983 OK 55, ¶ 9, 679 P.2d 1293, 1295. Otherwise, when the statute of limitations begins to run is a question of fact if reasonable people would reach "conflicting opinions thereon." Id. Similarly, whether the plaintiff was diligent in ascertaining his or her cause of action is a question of fact for the jury. Id. ¶ 8, 679 P.2d at 1295. We now apply these general rules to each of Horton's causes of action to determine if her claims were untimely filed. A. The Oklahoma Securities Act ¶11 The Oklahoma Uniform Securities Act of 2004 (Securities Act) created mechanisms for private enforcement of civil liability in the sale of securities. 71 O.S.Supp. 2003, §§ 1-101 to 1-701. Horton sought relief under the Securities Act by alleging that the defendants made an "untrue statement of a material fact or an omission to state a material fact" in their offer to sell her the bond she purchased in 2007. See id. § 1-509(B).7 The Securities Act identifies the accrual date for its causes of action. For a misrepresentation in Section 1-509(B), a plaintiff's cause of action accrues at the point "a person sells a security . . . by means of an untrue statement of a material fact." Id. The Securities Act also sets a statute of limitations for its causes of action. For misrepresentations in the sale of securities, Section 1-509(J)(2) lays out a two-year statute of limitations that only begins to run upon the "discovery of the facts constituting the violation." Id. § 1-509(J)(2).8 ¶12 We have not before construed the language of Section 1-509(J)(2). We must begin with the plain language of the statute, W.R. Allison Enterprises, Inc. v. CompSource Oklahoma, 2013 OK 24, ¶ 15, 301 P.3d 407, 411, but we also may examine the official comments that accompany the uniform act upon which the Securities Act is based.9 The plain language of Section 1-509(J)(2) creates only a subjective-knowledge standard--the statute of limitations does not begin to run until a person has discovered the facts constituting the violation. But that is not the intention of the uniform act; the uniform act sought to adopt its statute of limitations with that of federal securities law. Unif. Sec. Act § 509 official cmt. 14. Oklahoma sought to do the same.10 Courts have construed that time limitation in federal securities law not just to require actual subjective knowledge of the facts of the violation, but also to adopt an inquiry notice standard. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991); Law v. Medco Research, Inc., 113 F.3d 781, 785 (7th Cir. 1997). The official comment applicable here impresses the same construction for Section 1-509(J)(2)'s limitations' period. Unif. Sec. Act § 509 official cmt. 14. The clock begins to run on a plaintiff's claim after discovery of the facts or "'after such discovery should have been made by the exercise of reasonable diligence.'" Id. (quoting Law, 113 F.3d at 785). ¶13 The intent of the statute of limitations at issue in the Securities Act is identical to our jurisprudence on the intent of the statute of limitations for fraud and the discovery rule. McCain v. Combined Commc'ns Corp. of Okla., Inc., 1998 OK 94, ¶ 8, 975 P.2d 865, 867 ("Fraud is deemed to have been discovered when, in the exercise of reasonable diligence, it could have or should have been discovered."); Digital Design Grp., 2001 OK 21, ¶ 17, 24 P.3d at 839. We agree with the uniform act's intent and hold it to apply to Section 1-509(J)(2) of the Securities Act.11 And the parallelism of the statute of limitations for a claim of misrepresentation under the Securities Act with the statute of limitations for common law fraud establishes an important consideration for the discovery of facts of misrepresentation. Implicit within discovery of the facts for a claim of misrepresentation is the Oklahoma Pleading Code's requirement that in "all averments of fraud or mistake, the circumstances constituting fraud or mistake be stated with particularity." 12 O.S.2011, § 2009(B). As a practical matter, a plaintiff would have to discover particular facts relating to the fraud or misrepresentation or risk having his or her case dismissed--those particular facts require more detail than those required for a negligence cause of action. ¶14 We now turn to whether the defendants submitted sufficient evidentiary material to establish that Horton had discovered or in the exercise of reasonable diligence should have discovered the facts of the misrepresentation more than two years prior to filing suit. The defendants presented the district court with six material facts; Horton admitted each one. The evidentiary material showed that 1) Horton wrote a check for the bond on September 18, 2007; 2) the bond was issued on October 1, 2007; 3) a few days after she wrote her check, Horton received a call from the Commission telling her it was investigating the defendants and it suspected fraud; 4) in the months that followed her purchase of the bond, she "tried hard" in getting her money back from the defendants and worked with the Commission; 5) Horton filed a proof of claim with the federal bankruptcy court overseeing the bankruptcy proceedings of Life Fund 5.1, L.L.C.; and 6) her proof of claim contained a three-page hand-written letter detailing her claim against the defendants and the debtor. The defendants moved for summary judgment, so we examine these facts in the light most favorable to Horton. Jennings v. Badgett, 2010 OK 7, ¶ 4, 230 P.3d 861, 864. ¶15 The accrual date of Horton's cause of action is the day the defendants sold her a security by means of misrepresentation. The statute of limitations for her cause of action began to run when she discovered or in the exercise of reasonable diligence should have discovered the facts to bring her claim in a court of law. To sustain summary judgment, the defendants had to establish when Horton knew or should have known that the defendants sold her a bond through misrepresentations. From the evidentiary material, this Court cannot ascertain when Horton discovered or should have discovered the misrepresentations because reasonable people could reach different conclusions thereon. ¶16 The defendants contend that the statute of limitations started to run when Horton first requested the return of her money from the defendants in September of 2007.12 But the only evidentiary material to support the defendants' argument that Horton knew of her claim is a call made by the Commission to Horton about the defendants' possible involvement with fraud.13 Under the defendants' theory, only 26 months passed from the date she knew or should have discovered the misrepresentations--two months more than the statute of limitations would allow. The undisputed facts only establish that Horton grew concerned about her purchase. Under the defendants' argument, Horton should have been able to walk into the courthouse and file her cause of action on the day she asked for the return of her money. It is in dispute that Horton had sufficient detail to allege misrepresentations when she made her request as we view these facts in a light most favorable to her. In those two months, we do not know what Horton knew or should have learned from her discussions with the Commission. We do not know what Horton uncovered after her purchase. The defendants failed to submit any evidentiary material to show what a person in Horton's position should have learned. It is the duty of the defendant to establish when Horton knew or should have discovered her claim; a court cannot use conjecture to determine it. The defendants failed to meet that duty in their motion for summary judgment. ¶17 Summary judgment can only be granted by a court where 1) there is no genuine issue as to any material fact and 2) the movant is entitled to judgment as a matter of law. 12 O.S.2011, § 2056(C). With nothing more than Horton's concerns, a court cannot pinpoint when Horton discovered or should have discovered the facts of the misrepresentation. The point when the statute of limitations began to run is in dispute; therefore, the defendants are not entitled to judgment as a matter of law for Horton's claim of misrepresentation in the sale of securities under the Securities Act. B. Common Law Fraud ¶18 We apply the same general rules to Horton's claim for common law fraud. We must first establish an accrual date for her claim. Section 95 of Title 12 of the Oklahoma Statutes states the accrual date for fraud: "[A]n action for relief on the ground of fraud" is limited to two years, but "the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." 12 O.S.2011, § 95(A)(3). A claim for fraud accrues when a person discovers the fraud. A party discovers fraud when he or she ascertains each element of the claim. See Consol. Grain, 2009 OK 14, ¶ 9, 212 P.3d at 1171. Horton pled actual and constructive fraud. This Court has defined actual fraud as "the intentional misrepresentation or concealment of a material fact, with an intent to deceive, which substantially affects another person" and defined constructive fraud as "a breach of a legal duty or equitable duty to the detriment of another, which does not necessarily involve any moral guilt, intent to deceive or actual dishonesty of purpose." Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1046. ¶19 A party's accrual date occurs when the party discovers the fraud and has sufficient detail to plead the claim because pleading fraud requires a higher level of factual detail than a simple negligence claim. See 12 O.S.2011, § 2009(B). The defendants failed to submit sufficient evidentiary material to establish an undisputed accrual date. As discussed with Horton's Securities Act claim, the evidentiary material on summary judgment does not establish when she knew or should have discovered the facts of her claim for fraud. Horton could not have filed a cause of action for fraud with merely her concerns of the defendants' conduct. And the defendants failed to submit evidentiary material to establish what Horton should have discovered in the months after her purchase. To agree with the defendants' position would require the Court to infer as to Horton's knowledge; we refuse to make those assumptions and change the way we view facts in a light most favorable of the nonmovant. See Jennings. 2010 OK 7, ¶ 4, 230 P.3d at 864. It was error for the district court to rule that the statute of limitations for Horton's claim of fraud had run by the time she filed her petition in district court. C. A Stockbroker's Fiduciary Duty, Negligence, and Gross Negligence ¶20 We turn to the final two counts Horton has brought before this Court. Our general rules apply similarly to both counts, but first we address whether a stockbroker owes a fiduciary duty to a client. A claim for breach of fiduciary duty arises in negligence, but raises the duty of care based upon a special relationship. Plaintiff contends that a stockbroker has a per se fiduciary duty to a client, relying on MidAmerica Federal Savings & Loan Ass'n v. Shearson/American Express, Inc., 886 F.2d 1249 (10th Cir. 1989), and Roberson v. PaineWebber, Inc., 2000 OK CIV APP 17, ¶¶ 10-11, 998 P.2d 193, 198-99. There are two problems with this contention: first, there is no allegation that the defendants were stockbrokers; and second, this Court has never imposed a per se fiduciary duty on a stockbroker or a person selling bonds. Rather, this Court has held that the establishment of a fiduciary duty and the extent of the duty are fact specific in claims such as those before us now. See Sellers v. Sellers, 1967 OK 34, ¶ 21, 428 P.2d 230, 236. ¶21 The law regarding a fiduciary relationship is well settled. Fiduciary or confidential relationship has a broad meaning that includes legal, contractual, formal, and informal relations and exists when one person trusts and relies upon another. Id. ¶¶ 21-22, 428 P.2d at 236. Such a relationship exists when one person acquires influence over another such that the influenced allows the influencer to substitute his or her will for the influenced's own. Id. ¶ 22, 428 P.2d at 236. The confidence's source is of no consequence. Id. In most instances, the question of a fiduciary relationship is for a trier of fact. Id.; Schovanec v. Archdiocese of Okla. City, 2008 OK 70, ¶ 44, 188 P.3d 158, 174. Here, Horton alleged multiple meetings with the defendants that led her to place her trust in them. Whether the defendants owed Horton a fiduciary duty is a question of fact. ¶22 For any negligence claim, including breach of fiduciary duty, a claim accrues when a party ascertains each element of his or her claim. See Consol. Grain, 2009 OK 14, ¶ 9, 212 P.3d at 1171. The statute of limitations then runs for two years. 12 O.S.2011, § 95(A)(3).14 For a breach of a fiduciary duty, the Court has made "clear that the statute of limitations begins to run on a trust beneficiary's claim when it learns it has suffered damage that might be the trustee's fault." Smith v. Baptist Found. of Okla., 2002 OK 57, ¶ 7, 50 P.3d 1132, 1137.15 It is a question of fact of when the breach was "discovered or should have been unearthed with the exercise of ordinary diligence" which depends "on the surrounding circumstances, the relationship of the parties, and all other elements peculiar to the cause." See id. ¶ 8, 50 P.3d at 1137-38. Other than a heightened duty of care, breach of fiduciary duty is identical to negligence and gross negligence.16 ¶23 Horton's breach of fiduciary duty, negligence, and gross negligence claims accrued when the defendants made false statements to induce her to purchase the bond. And just as with the other claims, there is a glaring issue of when Horton knew or should have discovered her claims for negligence and gross negligence. The defendants failed to submit evidentiary material to establish when Horton knew or should have discovered the elements of her tort claims. We do not know what Horton discovered or should have discovered in the months that followed her purchase of the bond. We have previously required evidentiary material to establish when a plaintiff knew or should have known in the exercise of reasonable diligence that he or she had a cause of action. Redwine, 1983 OK 55, ¶ 2, 679 P.2d at 1294.17 That evidentiary material is missing here. ¶24 Horton would not have needed to discover the level of factual detail that she did for her claims of fraud and misrepresentation, and the statute of limitations for her claims for breach of fiduciary duty, negligence, and gross negligence could have begun to run much earlier than her fraud and misrepresentation claims. But we cannot interject this Court's assumptions into the evidentiary material presented at summary judgment. The defendants provided no evidentiary material beyond the phone call Horton received from the Commission. That call would not have been enough to file a petition in district court on that day for her tort claims, so it cannot begin the running of the statute of limitations. What we do not know is what occurred in the months that followed the phone call, and on summary judgment, we will not assume those facts. That duty is on the defendant to submit evidentiary material, and here they failed to establish when Horton knew or should have discovered the elements of her claims for breach of fiduciary duty, negligence, and gross negligence. ¶25 In all probability, all of Horton's claims did not begin to run at the same time because of the different levels of factual detail needed to discover the claims. But each of her claims deserves specific attention as to when the tolling of the statute of limitations stopped and the limitations period began to run. Without evidentiary material, that is a question of fact for the jury. The district court erred in granting summary judgment for the defendants on Horton's claims for breach of fiduciary duty, negligence, and gross negligence. D. Life Fund 5.1, L.L.C.'s Bankruptcy Stay ¶26 Finally, Horton argues that the bankruptcy proceedings of Life Fund 5.1, L.L.C. tolled the statutes of limitations on all of her claims against the defendants. This argument fails as Horton does not provide any evidentiary material to connect the party in bankruptcy and the defendants or point this Court to sufficient legal authority or convincing argument for the proposition that the automatic stay in the federal bankruptcy proceeding precluded her from filing her claims against the defendants personally in the state district court. ¶27 Horton's only legal position is found in McGee v. Kirby, 1941 OK 326, 118 P.2d 199, but McGee is not helpful to Horton here.18 While the United States Code does establish an automatic stay and time extensions for the debtor filing for bankruptcy protection,19 Horton fails to demonstrate how the automatic stay mandated by Section 362 of Title 11 of the United States Code prevented her from bringing suit in the state district court. United States circuit courts of appeals have recognized a limited exception to the general rule that a bankruptcy stay is inapplicable to claims against non-debtor third parties,20 but we have no facts in the evidentiary material that establish even a limited connection between Life Fund 5.1, L.L.C. and the defendants. Therefore, we reject Horton's argument here because she failed to provide any evidentiary material to support her position, but she is free to pursue it in the district court. V. CONCLUSION ¶28 The district court erred in granting the defendants' motion for summary judgment on Horton's claims for misrepresentation in the sale of securities under the Securities Act, fraud, breach of fiduciary duty, negligence, and gross negligence. The defendants failed to submit sufficient evidentiary material in their motion for summary judgment to establish when Horton knew or should have discovered with reasonable diligence each of her claims. Therefore, the dates she discovered or should have discovered the elements of her claims are still questions of fact. Nothing about our decision today changes our jurisprudence on accrual dates, statute of limitations, or the discovery rule. It would be a grave mistake to read its holdings as such. Applying our long-standing precedent to the meager amount of facts supplied by the defendants establishes that whether Horton knew or should have discovered the elements of her claim more than two years prior to her filing her lawsuit are still questions of fact. We vacate the opinion of the Court of Civil Appeals and remand this appeal to the district court for proceedings consistent with this Court's opinion. COURT OF CIVIL APPEALS' OPINION VACATED;DISTRICT COURT'S JUDGMENT REVERSED;REMANDED WITH INSTRUCTIONS. REIF, C.J.; COMBS, V.C.J.; AND KAUGER, WATT, EDMONDSON, TAYLOR, COLBERT, AND GURICH, JJ., CONCUR. WINCHESTER, J., DISSENT. FOOTNOTES 1 Firstar was also frequently known as First Fidelity Financial Group of Oklahoma City. 2 71 O.S.Supp. 2003, § 1-509(B); id. § 1-301. 3 Id. § 1-509(D); id. §§ 1-401(A), 1-402(A). Counts I and II were dismissed by the district court. In both instances, the district court ruled that counts I and II were barred by the one-year time bar in the Oklahoma Securities Act, citing id. § 1-509(J)(1). Horton has appealed neither of these issues to this Court, and these rulings became final. 4 Id. § 1-509(B). 5 In addition to the two parties currently defending this suit, Horton named as a defendant Allen C. Enegren. The record indicates that Enegren died before being served with summons and was never made a party to this case. The district court also dismissed Firstar as a party during the litigation, and that issue has not been brought before this Court. 6 The six material facts presented by the defendants are discussed in paragraph 14. 7 The Securities Act provides a civil cause of action for purchasers of securities defrauded by a seller: A person is liable to a purchaser if the person sells a security . . . by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it is made, not misleading, the purchaser not knowing the untruth or omission, and the seller not sustaining the burden of proof that the seller did not know and, in the exercise of reasonable care, could not have known of the untruth or omission . . . . Id. § 1-509(B). 8 Section 1-509(J)(2) provides the following time limitation for civil claims under the Securities Act: A person may not obtain relief:. . . .(2) Under subsection B of this section, other than for violation of Section 10 of this act, or under subsection C or F of this section, unless the action is instituted within the earlier of two (2) years after discovery of the facts constituting the violation or five (5) years after such violation. Id. § 1-509(J)(2). 9 The Oklahoma Legislature enacted the Securities Act in 2003 based upon the Uniform Securities Act (uniform act) drafted by the National Conference of Commissions on Uniform and State Laws. See Stephanie Chapman & Stephen Hetrick, Oklahoma Uniform Securities Act of 2004, 57 Okla. L. Rev. 899, 899 (2004); see also S.B. 724, 49th Legs., 1st Reg. Sess. (Okla. 2003). We may examine the legislative intent included in that uniform act as long as Oklahoma adopted the identical language of a particular section or the entire act. See, e.g., Barringer v. Baptist Healthcare of Okla., 2001 OK 29, ¶ 7, 22 P.3d 695, 698; Nat'l Union Fire Ins. Co. v. A.A.R. W. Skyways, Inc., 1989 OK 157, ¶¶ 18-19, 784 P.2d 52, 57; Perkins v. Okla. Tax Comm'n, 1967 OK 110, ¶ 6, 428 P.2d 328, 329. Oklahoma adopted nearly identical statutory time bars to those proposed in the uniform act. Compare Unif. Sec. Act (amended 2005), http://www.uniformlaws.org/shared/docs/securities/securities_final_05.pdf, with S.B. 724, 49th Legs., 1st Reg. Sess. (Okla. 2003). The only changes the Oklahoma Legislature made to the uniform act's section 509(j) were stylistic. 10 See generally Chapman & Hetrick, Oklahoma Uniform Securities Act of 2004, supra, at 917-18 ("[T]he Oklahoma Act conforms state law with federal statute of limitations for such actions.") (citing 28 U.S.C. § 1658(b) (2000)). 11 We note that the Legislature also created a statute of repose which Section 1-509(J)(2)'s statute of limitations operates within. After five years of the violation's accrual, a plaintiff is barred from bringing a cause of action. 71 O.S.Supp. 2003, § 1-509(J)(2) ("A person may not obtain relief . . . unless the action is instituted within . . . five (5) years after such violation."). As Horton was well within the five-year bar, we do not address this issue here. 12 It is unclear whether the defendants argue that Horton had actual knowledge of the misrepresentation at this point or should have had knowledge. In the defendants' motion for summary judgment, they argue she had knowledge, but then contradict this position in their reply brief during the summary judgment proceedings. 13 The defendants failed to establish whether Horton knew or should have known that the Commission was investigating her dealings with the defendants or investigating other unrelated dealings. As we view the facts in a light most favorable to Horton, our view is the latter. 14 Plaintiff contends that the statute of limitations has not begun to run on her breach of fiduciary duty claim and will not do so until the defendants either inform her of their wrongdoing or terminate the relationship, relying on Ludey v. Pure Oil Co., 1931 OK 527, 11 P.2d 102, and Becker v. State ex rel. Dep't of Pub. Welfare, 1957 OK 102, 312 P.2d 935. We have rejected this same argument in Mud Trans, Inc. v. Foster-Dickenson & Co., 1993 OK 94, 856 P.2d 282, and Smith v. Baptist Foundation of Oklahoma, 2002 OK 57, ¶ 7, 50 P.3d 1132, 1137. 15 An instructive case is Mud Trans, Inc., where the Court determined that the statute of limitations began to run on the plaintiff's claim when the plaintiff learned that some of the representations were false. 1993 OK 94, ¶ 16, 856 P.2d at 285-86. The facts in Mud Trans, Inc. are similar to the allegations in the case before us now. The defendant had enticed the plaintiff to invest in what the Internal Revenue Service (IRS) considered a sham and the IRS had rejected losses suffered from investments in the sham to be taken as a tax deduction. Id. The defendant knew of the IRS ruling but did not share the information with the plaintiff. Id. 16 A negligence claim consists of four elements: "(1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, (3) an injury, and (4) causation." Jennings, 2010 OK 7, ¶ 12, 230 P.3d at 865. Gross negligence merely modifies the element of breach of duty and is statutorily defined as the "want of slight care and diligence." 25 O.S.2011, § 6. 17 "Upon making inquiry of the Chief Medical Examiner of the State of Oklahoma, [the plaintiff] received a letter from the Examiner dated February 16, 1978, setting forth the true cause of death, the letter being her first knowledge of the circumstances of her husband's death." Id. 18 Horton quotes the following rule from McGee: It is a well-settled rule of law that "whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right." Id. ¶ 5, 118 P.2d at 200 (citing Johnson v. Johnson, 1938 OK 194, 77 P.2d 745). Horton fails to identify any "paramount authority" that prevented her from bringing suit. 19 11 U.S.C. § 362; id. § 108. 20 The general rule has long been followed by our sister courts. See, e.g., Fountain Sand & Gravel Co. v. Chilton Constr. Co., 578 P.2d 664, 665 (Colo. App. 1978) ("[I]n an action on a surety bond, the principal is not an indispensable party, and thus the principal's bankruptcy does not toll the statute of limitations on an action against the surety."); Cumberland Metals, Inc. v. Ky. Ins. Guar. Ass'n, 801 S.W.2d 339 (Ky. Ct. App. 1990). Federal courts of appeals have recognized a limited exception to this general rule, articulating that the protections of a bankruptcy stay may extend to non-debtor third parties under "unusual circumstances" if a "situation arises when 'there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor.'" In re Dow Corning Corp., 86 F.3d 482, 493 (6th Cir. 1996) (quoting A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999 (4th Cir. 1986)); see Okla. Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136 (10th Cir. 1994).

5406a187-157d-40c4-9d76-01d47b12c759

Tucker v. Cochran Firm-Criminal Defense Birmingham, LLC

oklahoma

Oklahoma Supreme Court

TUCKER v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C.2014 OK 112Case Number: 111181Decided: 12/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHRISTOPHER L. TUCKER, Plaintiff/Appellant,v.THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C., a foreign limited liability company, Defendant/Appellee. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. IV ¶0 A client brought an action in the District Court of Oklahoma County against the law firm which he had hired to represent him in a criminal case. The Honorable Lisa Davis, District Judge, granted the law firm's amended motion to dismiss because of a forum-selection clause in the parties' agreement which provided that venue shall be in Los Angeles, California. Client appealed and the Court of Civil Appeals concluded that the forum-selection clause should not be enforced, reversed the trial court's order dismissing his claims, and remanded the matter for further proceedings in the District Court. The law firm filed a petition for certiorari in this Court for our review of the opinion by the Court of Civil Appeals. We hold: (1) When a parties' agreement has an interstate forum-selection clause and a party seeks its judicial enforcement in an Oklahoma District Court by seeking dismissal of the Oklahoma proceeding, then the procedure for its enforcement is by a motion pursuant to 12 O.S. § 2012(B)(6), or Rule 13 motion for summary judgment; and (2) An interstate forum-selection clause is separable from the contract in which it appears, and its validity like any other provision in a contract is subject to the requirements of a valid contract. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OFCIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT ISREVERSED; CAUSE IS REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION Blake Sonne, Sonne Law Firm, P.L.C., Norman, Oklahoma, for Plaintiff/Appellant.A. Scott McDaniel, McDaniel Acord, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee. EDMONDSON, J. ¶1 This case involves a trial court's dismissal of an action based upon its determination that the action was not brought in the forum that was specified in the attorney-client written agreement. We hold that a party should utilize the 12 O.S. § 2012(B)(6)/summary judgment procedure when that party seeks to dismiss an Oklahoma proceeding based upon an alleged contractual right of interstate venue selection. The matter is remanded to the District Court for the parties to adjudicate their respective claims by the proper procedure. I. ¶2 The City of Oklahoma City charged Christopher Tucker (Tucker) with municipal misdemeanor offenses of interfering with official process, obstructing an officer, and failing to obey lawful commands of an officer. On August 9, 2010, Tucker signed an agreement for the Cochran Firm-Criminal Defense, Birmingham, L.L.C., (Cochran Firm), to provide him with legal representation for his scheduled trial in October of 2010. Tucker was found guilty of a municipal charge as a result of the trial proceedings. ¶3 Tucker filed an action in the District Court of Oklahoma County against the Cochran Firm alleging that the Case Manager for the law firm, John Pride, had misrepresented the nature of the services that the law firm would provide and that the Cochran Firm had (1) committed actual and constructive fraud, (2) committed acts of legal malpractice and negligence, (3) violated the Oklahoma Consumer Protection Act (15 O.S. §§ 751- 764.1), (4) committed the tort of outrage, and (5) breached the parties' agreement. ¶4 Tucker alleged that the Case Manager informed him that the law firm would engage in a four to five-day trial to defend Tucker, the law firm would provide an experienced trial lawyer with twenty to thirty years of experience to represent him at trial, and that the law firm "had attorneys who were licensed to practice in Oklahoma and who would in fact defend the Plaintiff in trial . . . ." He alleged that these statements were untrue and were made to fraudulently induce him to enter into an agreement for legal services and to pay "outrageous fees." The law firm required Tucker to pay a non-refundable retainer of $13,690.00 for legal representation for the trial. Tucker had paid to the law firm $12,200.00 in installments by the time his trial occurred. ¶5 He also alleged that a few days after he signed the agreement, the Cochran Firm informed him that Josh McKeown, an attorney with the firm, would represent him at the trial. He further alleged that on the morning of his trial he met for the first time the attorney who actually represented him at his trial, an Oklahoma lawyer, E. W. Childers. Tucker alleged that during the trial McKeown was in the courtroom seated in the area for the public and "whispered a couple of times to Childers." He also alleged that the Cochran Firm paid Childers $500.00 to represent him at his trial which lasted approximately forty minutes. ¶6 Tucker alleged that McKeown had not sought to be admitted pro hac vice for the trial. He also alleged that the Cochran Firm had (1) failed to request a court reporter for preparation of a trial transcript for an appeal, (2) failed to conduct any discovery or otherwise request documents and evidence from the City of Oklahoma City, (3) failed to secure and subpoena the police vehicle videos and videos from nearby businesses, (4) failed to obtain information concerning complaints and disciplinary actions concerning the police officers involved, (5) failed to obtain character witnesses for Tucker, (6) failed to prepare witnesses for the trial, (7) failed to obtain an expert witness for Tucker as promised by the Cochran Firm, (8) failed to submit a trial brief on a specific issue, (9) failed to object to the identification of evidence, (10) failed to move to suppress evidence based on an officer's lack of probable cause or reasonable suspicion to stop, (11) failed to seek admission pro hac vice, and (12) failed to adequately prepare with local counsel. ¶7 The Cochran Firm filed a motion to dismiss Tucker's petition. The law firm's motion relied on 12 O.S. § 19;1 a forum-selection clause in the contract; and Bakhsh v. JACRRC Enterprises, Inc., 1995 OK CIV APP 40, 895 P.2d 746, where in an opinion released for publication by order of the Court of Civil Appeals, the court stated that parties to a contract may select the jurisdiction in which all actions arising from their transaction shall be heard, and a selected forum in Dallas, Texas, was held to be reasonable in the circumstances. The forum-selection clause at issue in this case states that: "This agreement shall be interpreted under the laws of the state of California and jurisdiction and venue shall be exclusively in the county of Los Angeles, in the state of California."2 ¶8 This initial motion to dismiss was denied by the trial court because it was signed by an attorney not admitted to practice before the court. Lawyers for the Cochran Firm subsequently sought to vacate the trial court's ruling pursuant to 12 O.S. § 1031.1 with an argument that the person who signed the initial motion to dismiss was "a member" of the Cochran Firm acting as a "pro se defendant." The trial court vacated its order denying the motion to dismiss; directed the Cochran Firm to file an amended motion to dismiss; and ordered that the amended motion to dismiss, when filed, would relate back to the date the initial motion to dismiss was filed. ¶9 After filing the amended motion to dismiss, the trial court determined that the forum-selection clause in the retainer agreement should be judicially enforced. The trial court also determined that enforcement of the forum-selection clause would not be unfair or unreasonable under the circumstances. The trial court dismissed the action for improper venue. ¶10 Tucker appealed and the Court of Civil Appeals, in an opinion released for publication, reversed the trial court and remanded the cause for further proceedings. The appellate court concluded that the Retention Agreement specified who must sign the agreement on behalf of the law firm, and that this was not done. The court concluded that in the absence of a written retention agreement, the parties had an oral retention agreement, and that the trial court had failed to determine whether there existed a valid forum-selection agreement between the parties.3 The court appears to have concluded that a forum-selection clause would violate public policy if the clause required obligations created by a lawyer-client relationship in an Oklahoma legal proceeding to be governed by the law of another state. ¶11 The Cochran Firm filed a petition for certiorari in this Court and argued that (1) the appellate court should have applied an abuse-of-discretion standard instead of using a de novo review, (2) the burden of persuasion is on one attacking a forum-selection clause and the record shows that Tucker failed this burden, (3) a client-attorney fiduciary relationship does not apply when fees are negotiated, (4) the appellate court improperly adjudicated disputed questions of fact, and (5) the appellate court improperly based public policy considerations on allegations of fact where those facts occurred after the contract negotiation. ¶12 The Cochran Firm relies upon various opinions of the Court of Civil Appeals for the proposition that a forum-selection clause should be enforced and its argument on the nature of Tucker's burden in the trial court. Tucker relies on an opinion from the Court of Civil Appeals for the concept that a "reasonableness test" should be used when a court decides whether to enforce a forum-selection clause. Our Court of Civil Appeals has addressed whether forum-selection clauses in written agreements are enforceable in various circumstances.4 Although they constitute persuasive authority only and are not precedential because their publication was not pursuant to orders of the Supreme Court, they do serve as examples of courts in Oklahoma enforcing forum-selection clauses in Oklahoma since 1989.5 This Court has examined forum-selection clauses in the contexts of arbitration and issue preclusion,6 but the issues before us today have not been previously addressed by this Court. ¶13 Certiorari was previously granted by this Court, and we vacate the opinion of the Court of Civil Appeals. We have not previously addressed the procedure employed in the District Court and the respective burdens of the parties when a court adjudicates the enforcement of a forum-selection clause. We remand the case to the District Court for the purpose of providing the parties an opportunity to litigate the issue of the enforceability of the clause in this proceeding. II. ¶14 The first issue raised on certiorari involves the allocation of the burdens of pleading, persuasion, and proof; and this necessarily raises the proper procedure for a party invoking a forum-selection clause. In the last twenty years, when a mandatory7 forum-selection clause specified an exclusive forum for both jurisdiction and venue8 the United States Court of Appeals for the Tenth Circuit allowed a defendant to judicially enforce that clause by a motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3).9 On the other hand, the First Circuit Court of Appeals has treated a motion to dismiss based upon a forum-selection clause as a motion alleging the failure to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).10 However, in its 2013 opinion in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, the United States Supreme Court determined that the proper procedural method for enforcing a forum-selection clause in federal courts was through the doctrine of forum non conveniens and a statute allowing transfer of an action to another federal court.11 ¶15 The Court indicated that federal venue provisions "alone define whether venue exists in a given forum" and a parties' agreement may not make venue improper in a forum where a federal venue statute makes venue proper.12 For this reason a Rule 12(b)(3) motion to dismiss for improper venue would not be available where venue was proper pursuant to federal statute even though the parties had previously agreed to a different forum: " . . . a forum-selection clause does not render venue in a court 'wrong' or 'improper' within the meaning of [28 U.S.C.] § 1406(a) or Rule 12(b)(3) . . . ."13 ¶16 Oklahoma's 12 O.S.2011 § 2012 (B)(3) states that a motion to dismiss may be filed where "improper venue" is asserted.14 This Court, like the United States Supreme Court, has long-recognized that forum non conveniens does not present the issue of an "improper forum," but may apply when more than one forum is proper. We noted in Stevens v. Blevins that two proper venues must exist, and we explained that "this Court set forth procedural requirements including an application for a change of venue by the parties stating the facts on which the transfer is based . . . [and] we found that an application for a change of venue under the doctrine of intrastate forum non conveniens must be filed by a party before the date fixed for filing an answer."15 The procedure was established by our opinion and not by pleading statutes. ¶17 The Oklahoma Supreme Court set forth the procedural requirements for the forum non conveniens motion requesting change of venue, noting that the procedural requirements and timing were not controlled by statute. We did not view this motion as one raising "improper venue" within the scope of the venue statutes. Just as 12 O.S. § 2012(B)(3) does not apply to a motion raising the judicial doctrine of forum non conveniens, neither does § 2012(B)(3) apply to a motion alleging a contractual agreement for a different venue.16 ¶18 In Atlantic Marine Construction Co., supra, the U. S. Supreme Court noted that it need not consider application of Fed.R.Civ.P. 12(b)(6), and stated that "[e]ven if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause."17 The United States Court of Appeals for the Second Circuit has appeared to have construed this language to mean that a Federal Rule 12(b) motion is not a proper mechanism for enforcement of a valid forum-selection clause.18 Prior to Atlantic Marine Construction Co., supra, authors noted that the First, Second, Third, and Sixth Circuit Courts allowed forum-selection clauses to be enforced by Rule 12(b)(6) motion alleging "failure to state a claim," while the Fourth, Seventh, Ninth, Eleventh, and D.C. Circuit Courts allowed enforcement by a Rule 12(b)(3) motion alleging "improper venue."19 One author has noted: "But the [Supreme] Court has explicitly left open the possibility that using Rule 12(b)(6), and other means of raising forum clauses as an affirmative defense, may be 'ultimately correct.'"20 ¶19 Oklahoma currently has a statute addressing forum non conveniens. 12 O.S. § 140.3.21 However, no party to the present controversy argues that any language in § 140.3 requires its application to a forum-selection clause in a contract. We decline to make any holding on the application of the statute.22 ¶20 The forum-selection clause in the case before us was not created by a statute, but by a contract made by these parties. Obligations created by parties in a contract are enforced as contractual rights in a legal proceeding that adjudicates a contract cause of action (and defenses thereto).23 Contractual obligations may be used by a defendant to avoid liability in a legal action on the contract, and they are usually presented in the legal contest in forms such as contesting plaintiff's alleged meaning of the language of the contract, disputes over contract formation, performance, or execution, as well as affirmative defenses and compulsory counterclaims. The dispute before us concerns the language in the contract and its judicial enforcement. We have indicated that judicial enforcement of the contract-based claims in a retainer agreement include enforcing contractually specified arbitration and venue selection.24 What we have before us is a dispute concerning the judicial enforcement of a contract-based obligation specifying venue selection, a merits-based issue on the meaning of a specific provision of a contract. ¶21 The Cochran Firm sought dismissal in the trial court. Because this is a dispute on the merits of the cause of action, it may be procedurally presented by either an appropriate § 2012(B)(6) motion challenging the sufficiency of the face of the petition,25 or by a motion for summary judgment seeking a judgment on the merits of a contract-based claim.26 The party that sought to invoke judicial relief based upon an alleged contractual agreement for venue selection is the defendant, the Cochran Firm, when it sought dismissal in the trial court. A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.27 The Cochran Firm has the burden to file the appropriate § 2012(B)(6) motion to dismiss attacking facial sufficiency of the petition or a motion for summary judgment. Once Cochran's initial burden is satisfied, a burden is placed on Tucker to make the appropriate procedural and substantive response, as we now explain. III. ¶22 A typical dispute involving the judicial doctrine of interstate forum non conveniens is not based upon the parties' agreement or the merits of a contract and does not involve a 12 O.S. § 2012(B)(6) procedure. Rather, the doctrine involves specific private and public interests. The U. S. Supreme Court stated that when a federal district court adjudicates a typical forum non conveniens motion the trial court must evaluate both the convenience of the parties and various public-interest considerations; and upon weighing the relevant factors the court should decide whether, on balance, a transfer would serve the convenience of parties and witnesses and otherwise promote the interest of justice.28 ¶23 The High Court identified the parties' private interests as those including "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive."29 The Court identified the public-interest factors as including "the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law."30 ¶24 In Conoco, Inc. v. Agrico Chemical Co., we cited a 1947 U. S. Supreme Court opinion and a 1954 opinion from this Court, and we explained that we also examine the public and private interests involved in a forum non conveniens dispute.31 The forum non conveniens criteria consider private and public interests. Gulf Oil Corporation v. Gilbert, 330 U.S. at 508, 67 S. Ct. at 843. The private interests to be considered include whether the forum 1) is convenient for witnesses, 2) may reach unwilling witnesses by compulsory process, 3) allows a view of the premises, 4) is near the sources of proof, and 5) serves to make trial of the case less burdensome and more convenient. Id. The public interests include the burden of jury duty on the community and the community interest in having local controversies decided at home. Id. Except where the balance of these interests tilts strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Id. Oklahoma adopted these criteria in applying the doctrine of interstate forum non conveniens. St. Louis-San Francisco Ry. Co. v. Superior Court, at ¶ 23, 276 P.2d at 778. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, at ¶ 11, 115 P.3d at 833.32 ¶25 In Atlantic Marine Construction Co., supra, the Court stated that a plaintiff's choice of venue should be considered when a court adjudicates a forum non conveniens motion.33 The doctrine of forum non conveniens recognizes the convenience of the parties and their interests in selecting and litigating in a particular judicial forum. 34 However, in a circumstance of contract-based venue this interest has been expressed by them when they created an agreement stating their preference for a forum. As noted in Atlantic Marine, "The enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system."35 ¶26 In Conoco, Inc. v. Agrico Chemical Co., supra, this Court relied upon the U. S. Supreme Court's opinion in Gulf Oil Corporation v. Gilbert, supra, and stated that "Except where the balance of these [public and private] interests tilts strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."36 A valid forum-selection clause is one of those instances where a plaintiff's choice of a forum at the time of litigation may be disturbed by plaintiff's previous contractual choice of a different forum for litigation. In Atlantic Marine Construction Co., supra, the Court stated that when a valid forum-selection clause is present, " . . . the plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted."37 One reason for this is "the plaintiff has effectively exercised its 'venue privilege' before a dispute arises" when the plaintiff and defendant made a valid agreement on the judicial venue of their dispute.38 Because the private interests in selecting a forum for disputes have been determined contractually between the parties, a party challenging the selection is usually left only two choices, challenging the validity of the forum-selection clause or showing that public interest or public policy requires non-enforcement of the clause. ¶27 Some courts have treated the validity of a forum-selection clause as an issue separable from the validity of the rest of the contract in which the clause appears; i.e., similar to the issue presented by the validity of an arbitration clause,39 a forum-selection clause's validity is considered separately from the validity of the rest of the contract in which it appears.40 Historically, this Court has recognized that a contract may possess severable parts and severability is determined by the particular circumstances in each case, "each case must depend very large on the terms and circumstances of the contract involved."41 ¶28 Generally, a severable contract is susceptible of division and apportionment in its nature and purpose, and having two or more parts, not necessarily dependent on each other, nor so intended by the parties, in respect to matters and things contemplated and embraced in the contract; and whether a contract is entire or severable is primarily a question of intention be determined from language used by the parties and the subject matter of agreement.42 A contract with a forum-selection clause is separable in that the clause involves judicial enforcement of the contract instead of the usual contractual provisions concerning performance and the parties' obligations. ¶29 One example of separable clauses in a contract has occurred where courts examine arbitration clauses in a contract to determine if the clause itself is valid. In this sense and paraphrasing from the U.S. Supreme Court, when parties contractually commit to a particular venue to hear disputes arising from a contract, attacks on the validity of the contract, as distinct from attacks on the validity of the venue-selection clause itself, are to be resolved in the venue contractually agreed upon by the parties unless the venue-selection clause is invalid.43 ¶30 We decline to decide whether the amended motion to dismiss filed by the Cochran Firm properly raised the issue of forum-clause validity, or was a request for summary judgment or a § 2012(B)(6) motion. Because of apparent confusion on the issue of § 2012(B)(6) conversion to a motion to summary judgment as such relates to the standard of review raised by the parties on certiorari, we note the following. This Court "has consistently stated that a motion to dismiss for failure to state a claim upon which relief may be granted, as provided by 12 O.S.2001 § 2012(B)(6), is to be treated as a motion for summary judgment when matters outside of the pleadings are presented in support of the motion and those extra-pled matters are not excluded by the trial court when the motion is considered."44 Further, a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.45 When a defendant files a § 2012(B)(6) motion with an incorporated exhibit which is relied on by plaintiff in the petition, or is integral to plaintiff's petition, the motion is not converted into one for summary judgment.46 The Cochran Firm filed an amended motion to dismiss with six attached exhibits, Tucker's Petition, an affidavit of a person employed by the Cochran Firm, the written contract, and three opinions from the U. S. District Court for the Northern District of Oklahoma. Whether the incorporated written contract is integral to Tucker's petition and therefore not used as a basis for conversion to summary judgment was not briefed by the parties. Additionally, a valid contract requires that there should be (1) parties capable of contracting, (2) their consent, (3) a lawful object, and (4) sufficient cause or consideration.47 When the Cochran Firm attached an affidavit of one of its employees to the motion to dismiss, the issue arises whether the language used by the defendant in its motion/affidavit was for the purpose of showing Tucker's contractual intent, knowledge, and consent and whether a prima facie valid forum-selection clause existed. In other words, was the Cochran Firm making an effort to show that (1) a written agreement on forum-selection satisfied these four necessary elements to a contract, (2) a prima facie forum-selection clause existed, and (3) the Cochran Firm was entitled to a dismissal on the issue of forum-selection because of this affidavit? Was the quest for dismissal converted to summary judgment by the Cochran Firm's use of the employee's affidavit?48 Tucker filed a response with an affidavit attached which included statements that he was not informed by the Defendant of the forum-selection clause in the Agreement, and that he did not negotiate or discuss the clause. Plaintiff attached a copy of the written agreement to his response for the purpose of showing that he did not place his initials next to the forum-selection clause. Was this filing sufficient to raise a factual issue in the context of summary judgment relating to the four elements to a contract as a necessary predicate for a valid forum-selection clause and thus making the issue one for a jury?49 Plaintiff's response, like Defendant's motion, did not provide the trial court with any discussion, guidance, or request that the issues framed by the parties be reviewed by the trial court using procedure for a § 2012(B) motion, motion for summary judgment, or some other standard. The motion and response do not comply with the requirements of Rule 13 of the Uniform Rules for District Courts. Summary judgment proceedings are governed by Rule 13.50 The trial court granted the motion to dismiss, apparently convinced by Defendant's brief that Tucker was required to show that enforcement was mandatory unless Tucker showed that enforcement of the forum-selection clause was "unfair and unreasonable under the circumstances."51 The judgment of the District Court appears to show that its decision was not based upon either § 2012(B)(6) or a summary judgment request. We decline to decide these issues raised by the parties in advance of them litigating their claims in the District Court utilizing a procedure that is proper for the nature of the claims they desire to litigate.52 We recognize that this Court has not previously given express guidance for the procedure counsel should use for litigating a forum-selection clause, but litigation of a contract-based claim of forum selection should be litigated as all legal claims, in the context of procedural rules guaranteeing that a legal claim may be "carried to an adjudication on the merits."53 ¶31 No one may contract requiring conduct that is against public policy. 15 O.S. 2011 § 211.54 In Groendyke Transport, Inc.v. Cook, we explained that the judicial doctrine of forum non conveniens springs from the court's equitable powers and exercised when the interests of justice, including public policy, require.55 In the matter before us, Tucker's necessarily implied argument is that public policy requires negation of the forum-selection clause in this case and the substance of that public policy is found in (1) the "public interests" recognized by the doctrine of forum non conveniens, (2) the duties and responsibilities of a lawyer licensed to practice law in this state that were allegedly breached by the Cochran Firm, (3) general principles of contract law that were allegedly violated by the defendant, and (4) other allegations of wrongful conduct by the defendant. ¶32 As we previously noted, in Atlantic Marine Construction Co., supra, the Court stated that when a valid forum-selection clause is present, "as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted." The Court further explained that since the private interests were expressed by the forum-selection clause, a court should not consider arguments about the parties' private interests, but consider only the public interests: "As a consequence, a district court may consider arguments about public-interest factors only."56 ¶33 We agree with placing this burden on the party challenging a forum-selection clause after a prima facie validity of the clause is shown by a party relying upon such a clause, if a party challenging this validity is unsuccessful on that challenge. This burden is consistent with our opinions explaining that only those contracts that are invalid on their faces or clearly tend against public policy are void, that a contract should receive such an interpretation as will make it lawful if such result is not clearly violative of the intent of the parties, and that one who asserts the invalidity of a contract has the burden of proof.57 The Cochran Firm argued in its reply to Tucker's response that his "burden of proof" required him to show that litigating in California was "unfair or unreasonable." While Tucker's public policy claim may include the traditional "unfair and unreasonable" claim as such relates to a public-interest recognized in traditional forum non conveniens doctrine; because the Cochran Firm is asserting a contractual right, Tucker may raise any cognizable contract-based claim, including a claim based on public policy, when that claim relates to the forum-selection clause itself as opposed to the contract as a whole. ¶34 In response to the Cochran Firm's motion, Tucker argued that the forum-selection clause was never negotiated, bargained for, or discussed by the parties, and that while several of the contractual provisions required a showing of Tucker's agreement by the placement of his initials in various places in the contract, there was no place for his initials to show agreement with the forum-selection clause. He also argued "Defendant has made no allegation that the Agreement was a negotiated contract." Tucker challenged whether his consent had been given to the forum-selection clause.58 Tucker also alleged fraud in his petition, and if fraud was present then a forum-selection clause should not be enforced since it would violate public policy. Of course, a forum-selection clause obtained by fraud is voidable.59 Tucker also alleged public policy was violated by a lack of professional ethics by the Cochran Firm. We decline to decide these issues prior to their litigation in the trial court using a proper procedure. ¶35 We need not address Tucker's and the Cochran Firm's additional arguments because we must remand this proceeding to the District Court to provide an opportunity for the parties to present their claims within the proper procedural framework. In Rogers v. Dell Computer Corp., we remanded the matter to the District Court for additional proceedings "[b]ecause we have not before addressed the procedure to be employed on applications to compel arbitration."60 We have not before addressed the procedure to be employed on a motion to enforce a venue-selection clause. ¶36 The procedure when a contract-specified venue is the subject of litigation is not the same as when a motion is filed seeking the application of the judicial doctrine of forum non conveniens. For example, in the usual dispute involving the judicial doctrine of forum non conveniens, if a trial court grants a motion to dismiss then the order is appealed as a final order as defined by 12 O.S. § 953.61 In the present appeal, the Court directed the parties to comply with the procedure provided by Okla. Sup. Ct. R. 1.36. This Rule provides a procedure for summary judgments and dismissals for failure to state a claim or lack of jurisdiction of a person or subject matter.62 While the substance of this appeal should be one from a § 2012(B)(6)motion/summary judgment, the parties had no notice that their trial court briefs would serve as briefs on appeal or that a forum-selection litigation contest was one subject to 12 O.S. § 2012(B)(6) and the requirements for a Rule 13 summary judgment. While the lack of notice concerning the function of Rule 1.36 and certain trial briefs serving as appellate briefs may be corrected by an appellate court within an appeal, the parties must be afforded notice with an opportunity to be heard on their litigable interests when an appellate court requires a judicial procedure in the trial court and that procedure allocates burdens of persuasion and proof.63 If the Cochran Firm's exhibits to its motion served to show prima facie validity of the forum-selection clause in support of the motion for § 2012(B)(6) relief or summary judgment, then Tucker had a burden to respond to the motion and argue the proper response to a § 2012(B)(6) motion or respond to a motion for summary judgment and present any material facts that were disputed, and argue that Cochran Firm's claim concerning the venue selection should not be granted as a matter of law.64 Remand will provide the parties the opportunity to litigate the issues within a proper procedure and with notice of that procedure. IV. ¶37 We hold: (1) When a parties' agreement has an interstate forum-selection clause and a party seeks its judicial enforcement in an Oklahoma District Court by seeking dismissal of the Oklahoma proceeding, then the procedure for its enforcement is by a motion pursuant to 12 O.S. § 2012(B)(6), or Rule 13 motion for summary judgment; and (2) An interstate forum-selection clause is separable from the contract in which it appears, and its validity like any other provision in a contract is subject to the requirements of a valid contract. ¶38 The opinion by the Court of Civil Appeals is vacated. The judgment of the District Court is reversed, and the matter is remanded to that court for further proceedings consistent with this opinion. ¶39 CONCUR: REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ. ¶40 CONCUR IN RESULT: KAUGER, J. ¶41 NOT PARTICIPATING: COLBERT, C.J. FOOTNOTES 1 12 O.S. § 19 was created by Laws 2009, c. 228, § 2, and held to be unconstitutional in Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.3d 789. No issue relating to § 19 is before this Court in this certiorari proceeding. 2 Record on Accelerated Appeal (Okla. Sup. Ct. No. 111,181, filed Oct. 25, 2012), No. 10, Defendant's Amended Motion to Dismiss, Exhibit 3A, agreement between "The Cochran Firm-Criminal Defense" and Christopher Tucker, with a payor in addition to Tucker, and dated August 9, 2010. 3 While the Court of Civil Appeals concluded that the written agreement was not properly executed by the defendant, that issue is not properly before us on certiorari. 4 See, e.g., Victory Energy Operations, L.L.C. v. Rain CII Carbon, L.L.C., 2014 OK CIV APP 83, 335 P.3d 809 (released for publication by order of the Court of Civil Appeals) (Louisiana choice-of-law clause in parties' agreement applied); Beverly Enterprises-Texas. Inc. v. Devine Convalescent Care Center, 2012 OK CIV APP 16, 273 P.3d 890 (released for publication by order of the Court of Civil Appeals)(discussed mandatory and permissive forum-selection clauses); Howard Family Charitable Foundation, Inc. v. Trimble, 2011 OK CIV APP 85, 259 P.3d 850 (released for publication by order of the Court of Civil Appeals) (whether the forum selection clause comports with constitutional standards and public policy is one for determination by the trial court upon remand); Lively v. IJAM, Inc., 2005 OK CIV APP 29, 114 P.3d 487 (released for publication by order of the Court of Civil Appeals) (no evidence showed that a party agreed to a forum-selection clause in a post-contract invoice accompanying delivery of product where the clause materially altered the contract); Adams v. Bay, Ltd., 2002 OK CIV APP 117, 60 P.3d 509 (released for publication by order of the Court of Civil Appeals) (forum selection clause designating Nueces County, Texas, was not shown to be either unfair or unreasonable, and the order of dismissal in McClain County, Oklahoma, was affirmed); State ex rel. Fisher v. South Atlantic Dredging Co., Inc., 2000 OK CIV APP 123, 15 P.3d 523 (released for publication by order of the Court of Civil Appeals) (Oklahoma County action dismissed and order affirmed by appellate court when forum-selection clause designating "any other court in which such action might properly be brought" was construed as meaning a court with jurisdiction of both the subject matter and the parties; and defendants did not have sufficient minimum contacts for personal jurisdiction in Oklahoma); Barker Leasing, Inc. v. State Ins. Fund, 1995 OK CIV APP, 158, 910 P.2d 1102 (released for publication by order of the Court of Civil Appeals) (contractual venue choice of Oklahoma County for the State Insurance Fund and its Commissioner was not clearly unreasonable); Bakhsh v. JACRRC Enterprises, Inc., 1995 OK CIV APP 40, 895 P.2d 746 (released for publication by order of the Court of Civil Appeals) (parties to a contract may choose the jurisdiction in which all actions arising from their transaction shall be heard, and a selected forum in Dallas, Texas, was reasonable in the circumstances); Eads v. Woodmen of The World Life Insurance Society, 1989 OK CIV APP 19, 785 P.2d 328 (released for publication by order of the Court of Civil Appeals) (enforcement of the forum-selection clause was unfair and unreasonable in the particular circumstances). 5 Carbajal v. Precision Builders, Inc., 2014 OK 62, n. 10. 333 P.3d 258, citing 12 O.S.Supp.2012 Ch. 15, App. Okla. Sup. Ct. R. 1.200(c)(2); Shaffer v. Jeffery, 1996 OK 47, n. 11, 915 P.2d 910, citing former 12 O.S.1991 Ch. 15, App. 2, Rule 1.203. See also former Supreme Court Rule 27, 12 O.S.1981 Ch. 15, App. 1, ("No opinion [of the Court of Appeals] so published shall have precedential effect but may be considered persuasive."). 6 Coulter v. First American Resources, L.L.C., 2009 OK 53, ¶ 1, 214 P.3d 807, 808 (trial court committed error when it declined to enforce parties' contractual choice of arbitration venue); National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, 946 P.2d 662, 667-668 (in the absence of an appeal from a dismissal for improper venue based upon a forum-selection clause, the ruling became final in the issue-preclusion sense). 7 See, e.g., Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 321 (10th Cir. 1997) (Forum-selection clauses "are frequently classified as either mandatory or permissive," where mandatory clauses contain clear language showing that jurisdiction is appropriate only in the designated forum, and permissive clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.). Cf. Philips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007) (classifying a forum-selection clause as mandatory or permissive is one step in deciding whether the parties are required to bring a dispute to the designated forum or simply permitted to do so). 8 Some courts have recognized a distinction between a forum-selection clause and a mere venue-selection clause. Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982) ("The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum."); SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 582 (10th Cir.1997) ("Our interpretation of the myriad cases involving the issue leads us to the conclusion that term [forum selection clause] should be applied only to agreements which clearly confine litigation to specific tribunals to the exclusion of all others.") (explanatory phrase added). 9 K & V Scientific Co., Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 314 F.3d 494, 497 (10th Cir.2002), ("A motion to dismiss based on a forum selection clause frequently is analyzed as a motion to dismiss for improper venue under Fed.R.Civ.P. 12(b)(3)."), quoting Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir.1992). 10 Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). 11 Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, ___ U.S. ___ , 134 S. Ct. 568, 579, 580, 187 L. Ed. 2d 487 (2013) ("[28 U.S.C.] Section 1404(a) therefore provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district." and "the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens"). 12 Atlantic Marine Construction Co., ___ U.S. ___, 134 S. Ct. at 578 (rejecting "petitioner's approach" that a forum-selection clause could make proper venue improper, and stating that: "The conclusion that venue is proper so long as the requirements of § 1391(b) are met, irrespective of any forum-selection clause, also follows from our prior decisions construing the federal venue statutes."). 13 Atlantic Marine Construction Co., ___ U.S. ___, 134 S. Ct. at 579. 14 A-Plus Janitorial & Carpet Cleaning v. Employers' Workers' Compensation Ass'n, 1997 OK 37, n. 52, 936 P.2d 916, 929 citing 12 O.S.1991 § 2012(B)(3). 12 O.S.2011 § 2012 provides in pertinent part: . . . " . . . B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . 3. Improper venue; . . . ." 15 Stevens v. Blevins, 1995 OK 6, 890 P.2d 936, 939 (emphasis and citation omitted). 16 Just as we do not view the forum-selection clause as defeating the reach of Oklahoma venue statutes, we do not view the clause as defeating the jurisdiction of Oklahoma Courts. While personal and private rights may be waived, the law involving the power or structure of government may not be waived and subject matter jurisdiction may not be established by waiver, consent, or stipulation. State Insurance Fund v. JOA, Inc., 2003 OK 82, ¶ 7, 78 P.3d 534, 536. One author has stated that a contractual forum-selection clause is "a type of contractual waiver." Matthew J. Sorensen, Enforcement of Forum-Selection Clauses in Federal Court After Atlantic Marine, 82 Fordham L. Rev. 2521, 2550 (2014) (contending that: "The exclusive nature of the clause makes it a form of waiver, the intentional relinquishment or abandonment of a known right."). Thus, we do not view the matter presented by the Cochran Firm as one presenting a jurisdictional issue. See, e.g., Powertech Technology Inc. v. Tessera, Inc., 660 F.3d 1301, 1309-1310 (Fed. Cir. 2011), (explaining that in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 135-136, 127 S. Ct. 764, 166 L. Ed. 2d 604 (2007), the Court stated that the issue of contract interpretation is a merits issue, and not appropriate for a decision on a motion to dismiss under Rule 12(b)(1)). 17 Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, ___ U.S. ___ , 134 S. Ct. 568, 580, 187 L. Ed. 2d 487 (2013). 18 Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014) ("'neither the Supreme Court, nor this Court, has specifically designated a single clause of Rule 12(b) ... as the proper procedural mechanism' for enforcing a forum selection clause through a motion to dismiss. . . . The Supreme Court recently resolved this uncertainty in Atlantic Marine . . . [where] the Court held that generally 'the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens,' rather than Rule 12(b).") (material omitted and quoting Trade Comet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir. 2011) and citing Atlantic Marine, 134 S. Ct. at 580. Historically, the Second Circuit has allowed enforcement of forum-selection clauses by Rule 12(b) (1), (3) or (6) motions. Claire M. Specht, 12(b) What? Slater and Enforcing Forum Selection Clauses Through Dismissal, 53 B.C. L. Rev. E-Supplement 111, 117-118 (2012) (stating in 2012 that "Currently, the Second Circuit enforces forum selection clauses through Rule 12(b)(1), 12(b)(3), and 12(b)(6)."). 19 Maxwell J. Wright, Note, Enforcing Forum-Selection Clauses: An Examination of the Current Disarray of Federal Forum-Selection Clause Jurisprudence and a Proposal for Judicial Reform, 44 Loy. L.A. L. Rev. 1625, 1639-1642 (2011); Claire M. Specht, 12(b) What? Slater and Enforcing Forum Selection Clauses Through Dismissal, 53 B.C. L. Rev. E-Supplement 111, 115-118 (2012). 20 Matthew J. Sorensen, Enforcement of Forum-Selection Clauses in Federal Court After Atlantic Marine, 82 Fordham L. Rev. 2521, 2549 (2014), citing Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas, 134 S. Ct. 568, at n.4, 580. In Atlantic Marine Construction Co., supra, the Court also noted that if the issue is proper for a 12(b)(6) motion then the dispute "may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise" 134 S. Ct. 568, at n.4, 580. 21 Current § 140.3 of Title 12 is derived from Laws 2013, 1st Ex. Sess., c. 1 § 2 (eff. Sept.10, 2013, pursuant to § 3), and provides: A. If the court, upon motion by a party or on the court's own motion, finds that, in the interest of justice and for the convenience of the parties, an action would be more properly heard in another forum either in this state or outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay, transfer or dismiss the action.B. In determining whether to grant a motion to stay, transfer or dismiss an action pursuant to this section, the court shall consider:1. Whether an alternate forum exists in which the action may be tried;2. Whether the alternate forum provides an adequate remedy;3. Whether maintenance of the action in the court in which the case is filed would work a substantial injustice to the moving party;4. Whether the alternate forum can exercise jurisdiction over all the defendants properly joined in the action of the plaintiff;5. Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the action being brought in an alternate forum; and6. Whether the stay, transfer or dismissal would prevent unreasonable duplication or proliferation of litigation. 22 Current 12 O.S. §140.3 was previously codified at 12 O.S.2011 § 140.2. The dismissal in the trial court was filed on June 18, 2012. In Douglas v. Cox Ret. Props., Inc., 2013 OK 37, 302 P.3d 789) (No. 110,270, Court's decision June 4, 2013), mandate was issued July 1, 2013, and the Court held unconstitutional several statutes, one of which was § 140.2. We expressly decline to address whether a motion seeking relief pursuant to § 140.3 is similar to a motion seeking relief pursuant to the judicial doctrine of forum non conveniens or whether the § 140.3 motion is a 12 O.S. § 2012(B) motion. 23 Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, 820 P.2d 1338, 1341 (an adjudication of a plaintiff's cause of action must also adjudicate all defenses and interrelated counterclaims to that particular cause of action that were properly raised by the defendant). 24 Coulter v. First American Resources, L.L.C., 2009 OK 53, 214 P.3d 807. 25 Smith v. City of Stillwater, 2014 OK 42, § 13, 328 P.3d 1192, 1197-1198 ("Where not all claims appear to be frivolous on their face or without merit, dismissals for failure to state a claim upon which relief may be granted are premature."). See also Moneypenney v. Dawson, 2006 OK 53, ¶ 2, 141 P.3d 549, 551 (a motion to dismiss pursuant to § 2012 raising affirmative defense of statute of limitations should not be granted unless the face of the petition shows that the action time-barred). 26 State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, nn.9 -10, 297 P.3d 378, 384 (explaining that a motion to dismiss based solely upon a jurisdictional ground is not converted to one for summary judgment by reliance upon matters outside the pleadings, but a § 2012(B)(6) motion is so converted when reliance is made upon matters outside the pleadings). 27 In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 39, 326 P.3d 496, 511. See Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (The burden to show any particular fact or claim rests upon the party asserting such fact or claim as part of that party's action or defense). 28 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581. 29 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581, n.6, quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981) . 30 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581, n.6, quoting Piper Aircraft Co. 454 U.S. 235, 241, n. 6.. 31 Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 11, 115 P.3d 829, 833, citing Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947), and St. Louis-San Francisco Ry. Co. v. Superior Court, 1954 OK 223, ¶ 23, 276 P.2d 773, 778. After Gulf Oil, Congress enacted § 1404(a) to permit a change of venue between federal courts and these courts "were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). 32 After our opinion in Conoco, Inc. v. Agrico Chemical Co., supra, our Legislature provided authority for a stay, transfer, or dismissal based upon forum non conveniens, now codified at 12 O.S. § 140.3. Application of that statute is not before us in this controversy. 33 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581,n.6, citing Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S. Ct. 544, 99 L. Ed. 789 (1955). 34 Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, at ¶ 11, 115 P.3d at 833 ("The forum non conveniens criteria consider private and public interests."). 35 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581 (internal quotation marks deleted). 36 Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 11, 115 P.3d at 833, citing Gulf Oil Corporation v. Gilbert, 330 U.S. at 508. 37 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581. 38 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 581-582. 39 See, e.g., Kelly A. Blair, A Judicial Solution to the Forum-Selection Clause Enforcement Circuit Split: Giving Erie a Second Chance, 46 Ga. L. Rev. 799, 830 (2012), quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974) (" . . . the Court found that an arbitration agreement contained within a larger contract is actually "a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute."). 40 See, e.g., Intercall Telecommunications, Inc. v. Instant Impact, Inc., 376 F. Supp. 2d 155 (D.P.R.2005) ("Courts must distinguish between challenges to the validity of the underlying contract on the one hand, and to the validity of the forum selection clause in particular, on the other. Under the purview of this separability doctrine, a forum selection clause is deemed to be separate from, and independent of, the contract containing it.") 41 Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d 73, 75 (quoting a legal encyclopedia). 42 Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d at 75-76. 43 In Preston v. Ferrer, 552 U.S. 346, 349, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008), the Court stated that "when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, . . . ." and this is "distinct from attacks on the validity of the arbitration clause itself . . . ." Nitro-Lift Technologies, L.L.C. v. Howard,133 U.S. 500, 133 S. Ct. 500, 503, 184 L. Ed. 2d 328 (2012). See also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010) (noting two types of "validity challenges," one on the validity of an agreement to arbitrate and one challenging the contract as a whole). 44 State ex rel. Wright v. Oklahoma Corp. Comm'n, 2007 OK 73, ¶ 48, 170 P.3d 1024, 1039. 45 12 O.S.2011 § 2010(C): " A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." 46 Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 4, n. 10, 958 P.2d 128, 136. 47 15 O.S.2011 § 2: "It is essential to the existence of a contract that there should be: 1. Parties capable of contracting. 2. Their consent. 3. A lawful object; and, 4. Sufficient cause or consideration." 48 Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306 ("A prima facie case is made out by that quantum of proof which, if unexplained or uncontradicted, is sufficient to establish a given fact and to uphold a judgment in favor of the issue which it supports, but which may be refuted by other evidence."); Beville v. Curry, 2001 OK 1, ¶ 1, 39 P.3d 754 (trial court's order granting defendants' motion for summary judgment was affirmed on appeal because plaintiff failed to refute defendants' prima facie showing that they were entitled to judgment). 49 Cf. Gomes v. Hameed, 2008 OK 3, ¶ 18, 184 P.3d 479, 485 (generally, the question of whether the minds of parties ever met in complete agreement is a question of fact for the finder of fact). 50 Kordis v. Kordis, 2001 OK 9, ¶ 13, 37 P.3d 866, 871 ("... the right to a hearing on a motion for summary judgment is governed by Rule 13 and not Rule 4(h)"). See Rule 13, 12 O.S.2011, Ch. 2, App.1. (amended by In re Amendments to Oklahoma Supreme Court Rules, 2013 OK 68, June 14, 2013; eff. August 1, 2013) (amending both the Uniform Rules for District Courts, 2013 WL 3289131, and the Oklahoma Supreme Court Rules, 2013 WL 3729211). 51 The judgment granting dismissal states that "The Court further finds that enforcement of the mandatory forum selection provision would not be unfair or unreasonable under the circumstances." Journal Entry of Judgment, at p.2. 52 Tulsa Indus. Authority v. City of Tulsa, 2014 OK 81, ¶ 13, 336 P.3d 1016, 1019 ("This Court, as an appellate tribunal, does not make first-instance rulings."). 53 Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, 861 P.2d 295, n. 6, 298-299 ("If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits."). 54 Title 15, Section 211 of the Oklahoma Statutes makes unlawful, and thus unenforceable, contracts which are (1) "[c]ontrary to an express provision of law;" (2) "[c]ontrary to the policy of express law, though not expressly prohibited; or" (3) "[o]therwise contrary to good morals." See Hamilton v. Cash, 1939 OK 255, 91 P.2d 80, 81 (a contract will not be enforced when contrary to the public policy of the State). 55 Groendyke Transport, Inc.v. Cook, 1979 OK 59, 594 P.2d 369, 372. 56 Atlantic Marine Construction Co., ___ U.S. ___ , 134 S. Ct. 568, 582. 57 Norris v. Van Hendel, 1945 OK 249, 63 P.2d 217, 220. See also In re Kaufman, 2001 OK 88, ¶ 18, 37 P.3d 845, 854; (Our power to void a contract as being in contravention of public policy is delicate and undefined. We exercise it only in cases free from doubt.); Horn v. Gibson, 1909 OK 174, ¶ 0, 103 P. 563, 563 (Syllabus by the Court) (The party seeking to void a contract bears the burden of proving that the contract violates public policy.). 58 We decline to address whether Tucker's allegations of fact are sufficient to put at issue his consent to the forum-selection clause. The issue appears to have been raised by Defendant in its reply to Tucker's response when it cited Allis Chalmers Mfg. Co. v. Byers, 1939 OK 115, 88 P.2d 368, for the proposition that one who executes a contract is presumed to have understood its contents. However, because we remand the proceeding we need not address whether any law or facts are a required predicate to apply Allis in a controversy, or its exceptions, or other principles of contract law on this issue. 59 First Nat'l Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶ 12, 54 P.3d 100, 104 ("Fraud vitiates everything it touches, and a contract obtained thereby is voidable. And evidence is always admissible to show that contracts have been fraudulently obtained.") Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, n.7, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing that to do so would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching). In Scherk v. Alberto-Culver Co., 417 U.S. 506, n. 14, 519, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974), the Court distinguished between fraud relating to a contract as a whole and fraud relating to a forum-selection clause: "...a forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion." 60 Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 31, 138 P.3d 826, 833. 61 St. Louis-San Francisco Ry. Co. v. Superior Court of Creek County, 290 P.2d 118, 120 ("It is apparent that if a trial court should sustain a motion to dismiss on the grounds of forum non conveniens and dismiss the action, the plaintiff could appeal therefrom and thus obtain a review of the trial court's action, since such order on the part of the trial court would constitute a final order as defined by 12 O.S.1951 § 953."). The Court has stated that it may exercise original jurisdiction to review an order denying a motion to dismiss based upon the judicial doctrine of forum non conveniens because the defendant has no adequate remedy at law by which to obtain review because such an order does not constitute a final order and is not appealable as a matter of right. Groendyke Transport, Inc. v. Cook, 1979 OK 59, 594 P.2d 369, 372. See also St. Louis-San Francisco Ry. Co., 290 P.2d at 118, 120 ("... an order overruling a motion to dismiss on the grounds of forum non conveniens would not constitute a final order within the terms of the statute and would not be an appealable order."). 62 12 O.S.2011 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.36 states in part: "The Rule 1.36 accelerated procedure will govern appeals from: 1. summary judgments in cases in which the motions were filed under District Court Rule 13 after October 1, 1993; and 2. final orders in cases in which motions to dismiss for failure to state a claim or lack of jurisdiction (of a person or subject matter) under District Court Rule 4 were filed after October 1, 1993." 63 Brooks v. Baltz, 2000 OK 73, ¶ 6, 12 P.3d 467, 469 ("Fundamental fairness cannot be afforded except within a framework of orderly procedure, and that fairness includes giving notice of certain judicial events altering legally cognizable rights." ). 64 See, e.g., Wood v. Mercedes-Benz of Oklahoma City, 2014 OK 68, ¶ 4, 336 P.3d 457, 459 (When examining an order sustaining summary judgment, this Court determines whether the record reveals disputed material facts; and even when basic facts are undisputed, whether motions for summary judgment should be denied, if from the evidence, reasonable persons might reach different inferences or conclusions.).

2369ecc8-0874-4f83-961e-612e557f4db3

Hess v. Voklswagen of America, Inc.

oklahoma

Oklahoma Supreme Court

HESS v. VOLKSWAGEN OF AMERICA, INC.2014 OK 111Case Number: 111978Decided: 12/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RAJINE HESS & KELLY PARSONS, Individually and on behalf of persons similarly situated, Plaintiffs/Appellees,v.VOLKSWAGEN OF AMERICA, INC., Defendant/Appellant. APPEAL FROM THE DISTRICT COURTOF POTTAWATOMIE COUNTY ¶0 The defendant/appellant, Volkswagen of America, Inc. (Volkswagen) appealed the award of $7 million in attorney fees in a class action suit. The appellees/plaintiffs, Rajine Hess & Kelly Parsons (collectively, Hess/claimants), represented the class. The fee amount was determined by the trial court pursuant to a settlement agreement making Volkswagen responsible for "reasonable" attorney fees and costs associated with the litigation. Initially, the trial court awarded a fee of $3,610,719.15, an amount representing the lodestar less 5 percent. Thereafter, Hess filed a motion to reconsider relying on a Missouri Supreme Court decision in a class action against Volkswagen involving claims of defective window regulators. The Missouri Court determined that the appropriate lodestar was $3,070,320.00 and that the trial court did not abuse its discretion when it applied a multiplier of 2.0 to the lodestar, imposing a final fee of $6,174.640. Relying on the Missouri decision, the trial court adopted its original lodestar and amended its order to reflect a multiplier of 1.9 for an adjusted award of $7,221.438.30. We hold that the trial court abused its discretion: by including hours in failed, out-of-state litigation in the lodestar calculation; when it utilized, unchanged, the same analysis to sustain the award of over $7 million in attorney fees that it applied in support of a $3.6 million award; by placing undue reliance on non-binding, persuasive only, out-of-state jurisprudence in awarding $7 million in attorney fees where the class recovery was less than $50,000.00. REVERSED AND REMANDED. John H. Tucker, Colin H. Tucker, Kerry R. Lewis, Rhodes Hieronymus Jones & Tucker, Tulsa, Oklahoma, for Defendant/Appellant,Daniel V. Gsovski, Herzfel & Rubin, PC, New York, New York, Terry W. West, Bradley C. West, The West Law Firm, Shawnee, Oklahoma, for Plaintiffs/Appellees,T. Christopher Tuck (pro hac vice), A Hoyt Rowell, III (pro hac vice), Richardson, Patrick, Westbrook & Brickman, LLC, Mt. Pleasant, South CarolinaDennis E. Murray Sr. (pro hac vice), Donna Evans (pro hac vice), Murray & Murray, Sandusky, Ohio, John Bauta (pro hac vice), The Ferraro Law Firm, Miami, Florida Clyde A. Muchmore, Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, Oklahoma, for amicus curiae, State Chamber of Oklahoma. WATT, J.: ¶1 To dispose of the appeal, we must determine a single issue:1 whether granting attorney fees exceeding $7 million in a multi-jurisdictional, class action law suit constitutes an abuse of discretion where $45,780 was awarded to the class as a whole. Here, the trial court originally determined the appropriate attorney fees to be $3,610,719.15 based on State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659 and the directives of 12 O.S. Supp. 2009 §2023.2 Hess filed a motion to reconsider based on the fees awarded in Berry v. Volkswagen Group of America, 397 S.W.3d 425 (Mo. 2013), a Missouri Supreme Court case involving a class action against Volkswagen related to defective window regulator claims. The trial court considered the Missouri case; and, adopting the identical analysis utilized in reaching a determination that the appropriate fee award was approximately $3.6 million, the trial court amended its order to reflect a multiplier of 1.9 for an adjusted award of $7,221.438.30.3 ¶2 In calculating the lodestar, the trial court included hours in failed, out-of-state litigation concerning similar issues to those presented here. Based on these facts, we hold that the $7 million attorneys' fee award constituted an abuse of discretion. RELEVANT FACTS AND PROCEDURAL HISTORY ¶3 In 2005, Hess filed a class action suit against Volkswagen for breach of express and implied warranties relating to an improperly designed front spoiler. The claimants argued that there were design defects which caused the Jetta's4 front spoiler cover to catch on curbs or wheel-stops resulting in damage to the front spoiler. Certification of the class was upheld by the Court of Civil Appeals in 2009.5 Plaintiffs in Ohio filed a similar action in 2004. Volkswagen successfully decertified a Florida cause in July of 2005.6 ¶4 The parties entered a settlement agreement in December of 2011. Ohio residents filed an application to intervene on July 31, 2012. The Amended Order of Final Judgment Granting Final Approval of Settlement and Certification of Class was entered in November of the same year. ¶5 In conformance with the settlement, Volkswagen notified in excess of two million owners and lessees of class vehicles nationwide. The parties agree that the average pay-out to each successful applicant for repair costs constituted a full recovery. No Oklahoma citizens received any settlement pay-out. Claims from other states totaled 310 for a distribution by Volkswagen of $45,780 or approximately $140.00 per claimant.7 ¶6 As a part of the settlement, Volkswagen agreed to pay the claimants' reasonable attorney fees and costs.8 Hess filed its Brief in Support of an Award of Attorneys' Fees, Expenses and Class Representative Incentive Awards on October 2, 2012 seeking a combined fee and expense request of $15,000,000.00.9 On April 10, 2013, the trial court entered an order granting Hess attorney fees of $3,610,719.15 and expenses of $146,133.06. The attorney fee award included a downward adjustment10 of 5% to accommodate for fees incurred in the failed Florida litigation. In support of the award, the trial court provided detailed analysis of the legislatively enacted factors found in 12 O.S. Supp. 2013 §2023. ¶7 The day before the order awarding attorney fees issued, the Missouri Supreme Court decided Berry v. Volkswagen Group of America, 397 S.W.3d 425 (Mo. 2013). In Berry, the Missouri court determined that no abuse of discretion occurred by the trial court's application of a 2.0 multiplier to the lodestar. Relying on the Missouri case, Hess filed a Motion for Reconsideration of the Order Granting an Award of Fees and Expenses on April 19, 2013. ¶8 The trial court considered Berry and, ultimately, applied a multiplier of 1.9 to its earlier determined lodestar of $3,800,757.00 resulting in an adjusted fee award of $7,367,571.36. Volkswagen appealed, filing a timely Petition In Error on July 12, 2013. On February 25, 2014, the claimants' motion to retain was granted. The State Chamber filed an amicus brief April 1st. After defects in the record were corrected, we received the same from the trial court on June 20, 2014. STANDARD OF REVIEW ¶9 The reasonableness of attorney fees depends on the facts and circumstances of each individual case and is a question for the trier of fact.11 The standard of review for considering the trial court's award of an attorney fee is abuse of discretion.12 Reversal for an abuse of discretion occurs where the lower court ruling is without rational basis in the evidence or where it is based upon erroneous legal conclusions.13 ¶10 Appropriate steps to determine attorney fees begin with perusal of detailed time records to determine a lodestar fee arrived at by multiplying the attorney's hourly rate by the time expended. Next, in class action suits, the fee may be enhanced by application of certain factors to be considered in arriving at a fair and reasonable fee for class counsel. The considerations are delineated by the Legislature in 12 O.S. Supp. 2013 §2023 and include: time and labor required; novelty and difficulty of the questions; skill required to perform the legal services; preclusion of other employment; customary fee; whether the fee is fixed or contingent; time limitations; amount involved and results obtained; experience, reputation, and abilities of attorneys involved; undesirability of the case; nature and length of the professional relationship with the client; awards in similar causes; risk of recovery; and whether any benefits of the recovery take a non-cash form.14 In all cases, the attorney fees must bear some reasonable relationship to the amount in controversy.15 ¶11 UNDER THE FACTS PRESENTED,THE TRIAL COURT ABUSED ITS DISCRETIONIN COMPUTING THE LODESTAR AND IN APPLYINGA MULTIPLIER OF 1.9 TO THE SAME. ¶12 Hess originally sought $15 million in attorney fees. Here, the claimants assert that the trial court did not abuse its discretion in granting the motion for reconsideration and applying an incentive fee of 1.9 to its originally calculated lodestar, which included fees from the Florida failed certification proceeding. It argues no error resulted from the trial court's reliance on a single out-of-state opinion in making its incentive decision, noting that Oklahoma law compels consideration of awards in similar causes. ¶13 Volkswagen argues that including the hours attributable to the failed Florida litigation in determining the lodestar was inappropriate and that application of an incentive fee of 1.9 to the calculated fee was unwarranted. The claimants contend that the Missouri case upon which the court relied is contrary to Oklahoma law and distinguishable. We agree with Volkswagen's assertions. ¶14 a. Including attorney fees incurred in the failed Florida litigationin computing the fee award was a clear abuse of discretion. ¶15 Juan B. Bauta represented Florida class members in Volkswagen of America, Inc. v. Sugarman, 909 So. 2d 923 (Fla.App. 2005) for relief identical to that sought in the instant cause. The Florida claimants alleged that, as a result of a design defect, the class suffered repeated damage to the front spoiler assembly of their Volkswagen Jettas. ¶16 The trial court certified the class. The Florida Appellate Court determined that the trial court abused its discretion in reaching the certification ruling. It reasoned that the element of causation would require an individual inquiry into each plaintiff's claim. Therefore, the cause was reversed and remanded for decertification. Rehearing was denied. ¶17 Volkswagon asserts that Juan B. Bauta (Bauta) billed some 803.13 hours in the failed Florida litigation. It asserts that including these hours in the raw lodestar total in the instant cause constituted an abuse of discretion. Hess argues that inclusion of the hours was appropriate as Bauta's experience in Florida contributed to the successful settlement of the instant cause and allowed Florida residents to be included within the settlement class for payment of damages. We disagree with the claimant's arguments. ¶18 Here, this Court had no opportunity to review the certification decision. Volkswagen failed to timely file its certiorari petition, requiring this Court to dismiss the cause on September 21, 2009. Therefore, the Court of Civil Appeals ruling on certification is the law of the case. ¶19 In Hess v. Volkswagen of America, Inc. [Hess I], 2009 OK CIV APP 84, 221 P.3d 132, the Court of Civil Appeals stated: VW relies on a Florida case, Volkswagen of America, Inc. v. Sugarman, 909 So. 2d 923 (Fla.Ct.App. 2005), which, like the instant case, concerns a class composed of Jetta owners whose front bumper assemblies had been damaged as a result of contact with a wheel stop or curb. The Florida appellate court noted that, under Florida law, the "predominance requirement is not satisfied when the claims involve factual determinations which are unique to each plaintiff." Id. at 924. It reversed class certification because "the key element of causation mandates individual inquiry into each plaintiff's claim," including such factors as vehicle condition, type of damage, and actions of the driver. The Sugarman holding is clearly inconsistent with Oklahoma law. [Italics in original. Bold supplied. Footnotes omitted.] ¶20 Most certainly, in arguments before the Court of Civil Appeals, Hess opposed application of Sugarman to the certification decision. Such opposition leads to the conclusion that Hess asserted either that Florida law was substantially different from that of Oklahoma's for certification purposes or that Bauta's representation may have been inadequate. Nevertheless, whether either, both, or none of these deductions are correct, arguments that Mr. Bauta's experience in the failed Florida litigation was beneficial to the conclusion of the instant cause is unconvincing. ¶21 There was no issue of settlement addressed in Sugarman and the Court of Appeals concluded that the Florida law on certification did not comport with Oklahoma's on the same subject. Furthermore, Hess provides no citation of authority for the proposition that fees incurred in a cause independent of another may be collected in related litigation. ¶22 Under the facts presented and without supporting jurisprudence , it is difficult for this Court to conceive how Bauta's experience in Florida was of assistance to Hess here, especially where the attorney was unsuccessful at the certification stage in Florida. Therefore, we hold that the inclusion of Bauta's legal fees attributable solely to the Florida litigation in the lodestar calculation was an abuse of discretion. ¶23 b. The trial court abused its discretion by applying a 1.9 incentiveto the lodestar fee based on the identical analysis utilized tosupport an award of less than half such an award. ¶24 The trial court originally awarded $3,610,719.15 in attorneys' fees. In so doing, the court found "that the results obtained by Class Counsel do not mandate an increase in the fee award." It determined further that "a slight reduction in the lodestar is warranted based on the inclusion of attorney fees from the Sugarman litigation." Taking in consideration the monetary outcome of the case and balancing that with the fees awarded, the trial court determined that "a 5% reduction in the lodestar is justified."16 ¶25 On reconsideration, the trial court adopted, straight out of its prior order and without change, its analysis based on Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659 and 12 O.S. Supp. 2009 §2013(G)(4)(e) that it had originally utilized to determine that the reasonable attorneys' fee would be $3.6 million.17 It then looked to Berry v. Volkswagen Group of Oklahoma, Inc., 397 S.W.3d 425 (Mo 2013). ¶26 The trial court noted that: the facts of Berry and those here were similar; the instant litigation seemed to be the more intense of the two; although Missouri law was fundamentally different from Oklahoma, it appeared that the Missouri standards were the more restrictive; the uncertainty of recovery here would have convinced most attorneys to abandon the litigation; the Florida litigation was necessary to the successful prosecution of this case; and noted the possible chilling effect its original ruling might have on future litigants facing complex class action cases. On consideration of these factors, the trial court readopted its original lodestar of $3,800,757.00, an amount not representing the 5% reduction in consideration of the Sugarman case. It then applied a multiplier of 1.9 for an adjusted fee of $7,221,438.30. ¶27 Before discussing Berry, we note our determination, supra, that inclusion of attorney fees in the lodestar calculation for Bauta's time associated with the failed Sugarman litigation was unwarranted and an abuse of discretion. Furthermore, we disagree with the trial court's conclusion that Missouri's standards for the award of attorneys' fees in class action litigation are more restrictive than Oklahoma's. While Missouri courts need only consider eight factors in making an enhancement decision,18 the Oklahoma trial bench must consider the thirteen factors outlined in 12 O.S. Supp. 2013 §2023.19 ¶28 Berry brought a class action against Volkswagen related to defective window regulators installed in some of its vehicles. On appeal from the trial court's award of attorney fees, the Missouri court determined that the trial court did not abuse its discretion in determining the lodestar amount of $3,087,320 or in applying a multiplier of 2.0 for a total award of $6,174.650 in attorneys' fees. In concluding that the trial court did not abuse its discretion, the court in Berry focused on three factors considered by the trial court: any award to class counsel was contingent; taking the case precluded class counsel from accepting other employment; and the time required for trial delayed work on class counsel's other work. The Berry court stated: These findings support a finding that a multiplier was necessary to ensure a market fee that compensated class counsel for taking this case in lieu of working less risky cases on an hourly basis. ¶29 Like the fees in Berry, fees here were contingent in nature. Nevertheless, the trial court noted that there was "no evidence of any lost opportunity by any Class Counsel" to take on other clients or cases. Rather, it appears that there is evidence that counsel had every opportunity to participate in other litigation and nationwide class actions.20 This indicates that at least two of the factors relied upon in Berry to support the 2.0 multiplier are absent here. ¶30 Perhaps more instructive here than Berry is In re Volkswagen & Audi Warranty Extension Litigation, 692 F.3d 4 (1st Cir. 2012). Although Audi concerned the primary issue of whether federal or state law would govern the settlement of a class action, its analysis of the application of a multiplier provides guidance here. ¶31 Audi involved a class action alleging improprieties in Volkswagen's warranty extension or reimbursement program as it related to engine defects in certain Volkswagen and Audi vehicles. As is the case here, protracted litigation resulted in a settlement agreement providing that Volkswagen would pay "reasonable attorneys' fees and expenses." ¶32 The claimants' attorneys in Audi argued that they should receive $37.5 million in attorneys' fees from what they anticipated would be a $414 million recovery. A special master recommended an award of $30 million. Applying a lodestar calculation, the district court calculated fees at $500.00 per hour to produce a base lodestar value of $7,734,000. It applied a multiplier of 2.5, resulting in a fee of $19,335,000. It utilized these figures to support a $30 million fee award. ¶33 On appeal, the appellate court first determined that state rather than federal law was applicable to attorney fee calculations. The cause was remanded for application of Massachusetts law. As to the enhancement figure, the Court of Appeals for the First Circuit noted: [A] question remaining on remand is the question of the appropriate contingency enhancement, if any. The district court's choice of a multiplier figure was not based on Massachusetts law nor justified by the record, and it is therefore vacated. . . . As to the last question, the actual claims data collected by the settlement administrator is relevant to the enhancement question and in determining the appropriate fee. [Emphasis provided.] Although the settlement value in Audi was estimated to be $414 million, Volkswagen contended that the actual number would be in the $50 million range.21 ¶34 A nationwide class of 2,103,229 owners was certified here. At certification, Volkswagen admitted having received complaints from 663 persons involving the Jetta front spoilers being damaged from contact with a parking block or wheel stop. If all of the class had been awarded the $140 in damages provided to claimants, the total settlement amount would have approached $295 million. History has shown that only 310 valid claims have been filed and there has been a pay-out for damages for the minimal amount of $45,780. No payments went to Oklahoma residents. ¶35 This Court has long recognized the importance of the relationship between the amount sued for in a case seeking only money damages and the results obtained.22 As defined by Hess, the "class" included in excess of two million Jetta owners. Although in excess of 300 members have received full recovery for damage repairs and the warranty period has been expanded by twelve months through the settlement, if the pay-out is spread across the entirety of the defined class, recovery is minuscule. ¶36 When we consider the award to the class, as did the federal court in Audi, we have little difficulty in concluding that application of a 1.9 enhancement figure to the lodestar amount constituted an abuse of discretion. Nevertheless, we are loath to go so far as did the federal court and to instruct the district court that the record will not support application of a percentage amount to the lodestar figure. Our hesitancy lies in the fact that we are aware that the trial court is cognizant that multipliers may adjust a lodestar upwards or may diminish the award.23 CONCLUSION ¶37 The decision to file a nationwide class action can be the cause of massive amounts of work. The class counsel, being the masters of their complaints and all attorneys and their clients being servants to them, must consider the decision to file in that light.24 Nevertheless, the use of class-action procedures for litigation of individual claims may offer substantial advantages for named plaintiffs. It may motivate them to bring cases that, for economic reasons, might not be brought otherwise.25 ¶38 Trial judges have wide discretion in making reductions based on estimates of time spent on activities that are non-compensable in whole or in part.26 Here, the trial court abused its discretion in not deducting the entirety of the fees claimed in the failed Florida litigation when calculating the lodestar. ¶39 There is a strong presumption that the lodestar method, alone, will reflect a reasonable attorney fee.27 On reconsideration, the trial court applied a 1.9 increase of attorney fees based largely on the Missouri Supreme Court case, Berry, supra, a non-binding pronouncement on Missouri law, and factors not existing in the instant cause. No rational basis for the trial court's adjustment of the attorney fees based on the same factors which it determined did not warrant enhancement in its original order exists. Therefore, application of a 1.9 enhancement to the lodestar constituted an abuse of discretion. ¶40 The cause is reversed and remanded. The attorney fees, as herein modified, are to be assessed against Volkswagen and awarded to Hess in a manner consistent with this opinion and as ordered by the trial court. REVERSED AND REMANDED. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR (by separate writing), GURICH, JJ. - CONCUR COMBS, J. - DISQUALIFIED FOOTNOTES 1 Volkswagen argues that both the initial and the enhanced fee awards violate due process. Our determination that the trial court abused its discretion both in including attorney fees in the failed Florida litigation in calculating the lodestar and in enhancing its award on reconsideration by a factor of 1.9 negate the need to address the due process challenge, as attorney fees must be recalculated on remand. For the same reason, it is premature to consider issues raised concerning the amount of the fee to be awarded and the manner in which it should be calculated as articulated in the Brief of Amicus Curiae, The State Chamber of Oklahoma, filed on April 1, 2014. Arguments that Professor Charles Silver's testimony should have been excluded because of admissions that he was unaware of Oklahoma law as it related to the award of attorney fees appears unwarranted. Although Volkswagen argues that Silver's testimony was key in the trial court's determination of the hourly rates to approve and for approval of the lodestar, it appears that assertions that fees as high as $800 per hour were included in calculation of the lodestar are unfounded. Volkswagen's own witness testified that rates of $650 per hour were reasonable. [Where testimony is cumulative to other admissible evidence admission is harmless error. See, Cuesta-Rodriguez v. State of Oklahoma, 2010 OK CR 23, ¶40, 241 P.3d 214, reh'g denied, 247 P.3d 1192 (2011), cert. denied, ___ U.S. ___, 132 S. Ct. 259, 181 L. Ed. 2nd 151 (2011); Simpson v. State of Oklahoma, 2010 OK CR 6, ¶23, 230 P.3d 888, cert. denied, ___ U.S. ___, 131 S. Ct. 1009, 178 L. Ed. 2d 838 (2011).] When the original lodestar figure of $3.8 million is divided by the number of hours billed, approximately 7,600, the average rate per hour billed equals $500 per hour. In addition, ¶¶31 through 35 of the trial court's Order, filed on April 10, 2013, make it clear that rates of $650 to $700 were utilized in calculation of the lodestar. 2 Title 12 O.S. Supp. 2013 §2023 providing in pertinent part: ". . . G. ATTORNEY FEES AND NONTAXABLE COSTS. 1. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties agreement. . . . 4. In considering a motion for attorney fees filed after the effective date of this act: a. the court shall conduct an evidentiary hearing to determine a fair and reasonable fee for class counsel . . . e. in arriving at a fair and reasonable fee for class counsel, the court shall consider the following factors: (1) time and labor required, (2) the novelty and difficulty of the questions presented by the litigation, (3) the skill required to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount in controversy and the results obtained, (9) the experience, reputation and ability of the attorney, (10) whether or not the case is an undesirable case, (11) the nature and length of the professional relationship with the client, (12) awards in similar cases, (13) the risk of recovery in the litigation, and f. if any portion of the benefits recovered for the class in an action maintained pursuant to paragraph 3 of subsection B of this section are in the form of coupons, discounts on future goods or services or other similar types of noncash common benefits, the attorney fees awarded in the class action shall be in cash and noncash amunts in the same proportion as the recovery for the class." A prior version of the statute was in effect when the settlement agreement was signed. Nevertheless, the quoted portion of §2023 remains virtually the same in the revised version which became effective on September 1, 2013. 3 Trial court's order, filed June 14, 2013, providing in pertinent part: ". . . 1. In determining whether to reconsider and amend the Court's previous ruling regarding the award of fees and costs to the Plaintiff, the Court must first conduct an analysis of whether or not the 13 factors contained in the Oklahoma statutory scheme (12 O.S. §2023(G)(4)(e)) for determining the amount to award in a particular class action case are consistent with due process. The Court adopts its previous findings in paragraphs 24-51 of its Order of April 10, 2013 as to the litigation process and the application of the 13 statutory factors to that effort. . . . [Emphasis supplied.] 4 Originally, the class was intended to include model years 1994-2003. However, the certified class included "owners in the United States who purchased or leased a 1999-2003 Jetta." Miller v. Volkswagen of America, 889 F. Supp. 2d 980 (N.D.Ohio 2012). 5 A more detailed account of the underlying certification process can be found in Hess v. Volkswagen of America, Inc., 2009 OK CIV APP 84, 221 P.3d 132. Although Volkswagen sought certiorari of the certification decision, it was dismissed as untimely on September 21, 2009. 6 This is the failed Sugerman litigation for which Mr. Bauta seeks reimbursement for attorney fees and costs in the instant cause. See, Volkswagen of America, Inc. v. Sugarman, 909 So. 2d 923 (Fla.App. 2005). Nevertheless, the Florida claimants are a part of the negotiated nationwide settlement here. 7 The settlement also extended the warranty period for repairs for an additional year. 8 The Settlement Agreement (Amended), filed on June 29, 2012 providing in pertinent part at ¶¶17 and 21: "COSTS AND ATTORNEY FEES 17. Plaintiff's Counsel and VWGoA shall confer on a reasonable attorneys' fee and expense reimbursement to determine if the parties can reach agreement. Plaintiff's Counsel shall then apply to the Court, on or before forty-five days prior to the final fairness hearing, for an award of reasonable attorneys' fees and expenses for all professional services rendered and to be rendered in connection with the prosecution of this action and the consummation of this Settlement in an amount which shall be determined by the Court under applicable law, separate and apart from any payments or benefits provided to any member of the Settlement Class or the Settlement Class as a whole pursuant to the terms of this Settlement Agreement. The district court shall set the award of attorneys' fee and expenses in the absence of any agreement by the parties, subject to any and all rights of appeal by an aggrieved party or objecting class member, which are expressly reserved. The amount of Plaintiffs' application, and the material terms of any agreement by the defense not to oppose such application, if applicable, shall be disclosed in the Summary and Full Notices of Settlement . . . 21. This Settlement Agreement, and all terms and provisions thereof, shall be construed under and governed exclusively by the laws of the State of Oklahoma, including but not limited to 12 Okla. Stat. §2023, without application of any choice of law principles. . . ." 9 Mr. Juan Bauta sought lodestar fees of 1,361.18 hours at a rate of $650.00 per hour for a total of $884,767.00. Declaration of Juan Bauta in Support of Plaintiffs' Motion for an Award of Attorneys' Fees, Expenses and Class Representative Incentive Awards, p. 2. Volkswagen alleges that some 784.75 hours were billed to the class action attributable to the failed Sugarman litigation in Florida for a total lodestar amount of $510,087.50. 10 Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, ¶6, 849 P.2d 392. 11 Id. at ¶8. 12 Matter of Adoption of Baby Boy A, 2010 OK 39, ¶19, 236 P.2d 116; Tibbets v. Sight 'N Sound Appliance Ctrs., 2003 OK 72, ¶3, 77 P.3d 1042; Burk v. Oklahoma City, 1979 OK 115, ¶19, 598 P.2d 659. 13 Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶7, 102 P.3d 133. 14 Title 12 O.S. Supp. 2013 §2023, see note 2, supra. The first twelve of these factors are the traditional factors set out in Burk v. City of Oklahoma City, see note 12, supra. 15 Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d 890; Arkoma Gas Co. v. Otis Engineering Corp., see note 10, supra.. 16 Trial court's Order, filed April 10, 2013, providing in pertinent part at ¶52. 17 Trial court's Order on Reconsideration of Fees and Expenses, filed June 14, 2013, see note 3, supra. 18 Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425 (Mo. 2013), providing in pertinent part at p. 431: ". . . [T]here are factors that may be considered to determine the amount of attorneys' fees to award. . . . One consideration in determining the amount of attorneys' fees is the result achieved. . . . Other relevant factors in determining the reasonable value and amount of statutorily authorized fees include: 1) the rates customarily charged by the attorneys in the community for similar services; 2) the number of hours reasonably expended on the litigation; 3) the nature and character of the services rendered; 4) the degree of professional ability required; 5) the nature and importance of the subject matter; 6) the amount involved or the result obtained; and 7) the vigor of opposition. . . ." 19 Title 12 O.S. Supp. 2013 §2023, see note 2, supra. 20 Trial court's Order, filed April 10th, providing in pertinent part at ¶38. 21 No decision on attorney fees has been issued by the Massachusetts court. On Oct. 10, 2012, the United States District Court of Massachusetts held that reassignment of the case to another district judge was required to hear the attorneys' fees issue. In re Volkswagen & Audi Warranty Extension Litigation, 898 F. Supp. 2d 346 (D.Mass. 2012). 22 Tibbets v. Sight 'N Sound Appliance Ctrs., 2003 OK 72, ¶11, 77 P.3d 1042; Southwestern Bell Telephone Co. v. Parker Pest Control, 1987 OK 16, ¶13, 737 P.2d 1186. See also, Arkoma Gas Co. v. Otis Engineering Corp., see note 10,supra. 23 The trial court's Order, filed on April 10, 2013, providing in pertinent part at ¶52: "A lodestar adjustment based on results obtained, can be downward as well as upward, and substantial in amount. Arkoma Gas Co. v. Otis Eng'g Corp., 1993 OK 27, 849 P.2d 92." [Italics in original.] 24 Dewey v. Volkswagen of America, 728 F. Supp. 2d 546 (D.N.J. 2010) [Overruled on other grounds.]. 25 Anchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.C. 2231, 138 L. Ed. 2d 689 (1997); Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 1174, 63 L. Ed. 2d 427 (1980). 26 Chavex v. Netflix, Inc., 162 Cal. App. 4th 43, 75 Cal.Rptr.3d 4l3 (Ct.App. 2008). 27 Perdue v. Kenny A. ex rel. Winn, 559 US. 542, 130 S. Ct. 1662, 1673, 176 L. Ed. 2d 494 (2010); In re Enron Corp. Securities, 586 F. Supp. 2d 732 (S.D. Tex. 2008). TAYLOR, J., concurring (joined by Winchester, J.): ¶1 I concur in today's opinion finding that the trial court abused its discretion, vacating the attorney-fee award, and requiring the trial court to start anew in determining the reasonable amount of attorney fees, but write separately to provide guidance in determining reasonable attorney fees on remand. In reviewing the attorney-fee award, it is important to understand what this case is about and what it is not about. It is about a $140.00 replacement, including parts and labor, of a piece of decorative plastic on a Volkswagen Jetta. It is not about attorneys acting as private attorneys general protecting the social good; it is about attorneys acting with a business plan.1 It is not about righting a constitutional wrong, it is not about protecting Jetta owners from bodily injury or death, and it is not about protecting the public policy of this state. It is about 310 pieces of decorative plastic. ¶2 Rule 1.5(a) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2011, ch. 1, app. 3-A, requires attorneys to charge a reasonable fee. Rule 1.5(a) is the basis for the requirement that all fees, even those awarded in a class action, be reasonable. The considerations for determining reasonable attorney fees were set out in Rule 1.5(a) well before State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, see 5 O.S.1961, ch. 1, app. 3, § 12, and are substantially identical to those in Title 12, Section 2023(G) of the Oklahoma Statutes with the exception that Section 2023(G) also includes as considerations whether the case is undesirable, awards in similar causes, and the risk of recovery in the litigation.2 Rule 1.5(a)'s considerations for determining whether a requested or collected fee is reasonable apply equally to fixed fees and contingency fees. In re Adoption of Baby Boy A, 2010 OK 39, 236 P.3d 116; Oliver's Sports Ctr., Inc. v. Nat'l Standard Ins. Co., 1980 OK 120, 615 P.2d 291. ¶3 There are two primary methods of calculating attorney fees in class actions: the lodestar method and the contingency fee method.3 The contingency fee method assures that the fee has a reasonable relationship to the recovery. Even though this Court adopted the lodestar method in Burk, 1979 OK 115 at ¶ 10, 598 P.2d at 661, the contingency fee method is incorporated into any calculation of attorney fees because the amount in controversy and the results obtained must be considered in determining reasonable attorney fees. 12 O.S.Supp. 2013, § 2023(G)(8). In fact, the relationship of the attorney fees to the recovery is "the most critical factor" in determining reasonable attorney fees. Tibbetts v. Sight 'n Sound Appliance Ctrs., Inc., 2003 OK 72, ¶ 13, 77 P.3d 1042, 1049. Attorney fees that are out of proportion with or have no relation to the recovery may be indicative of a case being overworked, of fee churning, and of unnecessarily protracted litigation.4 ¶4 In addition to failing to give proper weight to the most important consideration (the relationship between the attorney fees and the recovery), the trial court also misconstrued the nature of the claims and erred in its application of a number of the considerations in determining the reasonable attorney fees. For example, the district court's finding that the litigation was "arduous and complicated" and that the attorneys showed a particular level of "expertise and courage" is unfounded and an abuse of discretion. When one thinks of courage, Clarence Darrow and the fictional Atticus Finch come to mind. It is hard to imagine promoting the cause of decorative plastic spoilers on a Volkswagen Jetta as courageous. "Courage" and decorative plastic parts which cause no danger to any person are concepts that do not go together. This case involves two jurisdictions, Oklahoma and Ohio, as the Florida case was dismissed, not numerous jurisdictions making coordination unduly complex. The fact that the case was not certified in Florida does not make this a complex case or an unpopular cause which would make it difficult to obtain counsel or require courage to litigate. ¶5 This is a very simple case which does not involve death, traffic safety, or bodily harm. This case involves a cosmetic defect so insignificant that the vast majority of the 2.1 million class members did not bother to file a claim, and only 310 were able to secure any recovery.5 In fact, the plaintiffs' attorneys expressly acknowledged that a majority of the 2.1 million class members suffered no injury from the alleged defect and would not be entitled to any recovery. ¶6 This case was brought on a contingency fee basis, meaning that the attorneys would have recovered at most $25,000.00 in fees from their clients. The trial court took into account that "much of the litigation occurred follow[ing] the reversal of certification" in the Florida case. Contingency fees are generally based on the final recovery in a case. Here, the trial court should give no consideration to resources expended in a failed certification attempt in Florida. ¶7 In considering the nature and length of the professional relationship between the attorneys and the clients, the trial court mistakenly considered the length of this litigation, including the litigation in Florida which did not involve most of the attorneys in this case. Rather, the trial court should have considered the length and nature of the relationship before the litigation began. The situation here is not like that of an attorney on retainer, employed by a business, or who represents a client in all legal matters. There is no evidence that the attorneys here had a relationship with any of the class representatives before the litigation began. ¶8 The trial court considered several factors improperly in rationalizing that the attorney-fee award is reasonable, such as recovery of future claims. The class recovery at the relevant time, i.e., when the attorney fees were awarded, was at most $47,040.00. In trying to justify the attorney fees, the trial court improperly considered future claims. Still, the trial court's most egregious error by far was failing to give proper consideration to the relationship of the attorney fees to the recovery. ¶9 The attorneys' requested fees of over $14,000,000.00 is 317 times the recovery. The trial court's attorney-fee award of $7,221,438.30 is 154 times the recovery. The initial trial court award of $3,610,719.15 in attorney fees is 77 times the recovery. Lastly, if the trial court on remand omits only the fees charged in the Florida litigation and caps attorney fees at $650.00 an hour, the attorney-fee award will still be 64 times the claimants' recovery. Such a disproportional benefit to the lawyers relative to the claimants' recovery is repugnant to the purposes of our judicial system and to the purposes of class actions and erodes confidence in the courts. See Pearson v. NBTY, Inc., ___ F.3d ___, 2014 WL 6466128 *3 (7th Cir. 2014) (calling "outlandish" attorney fees amounting to sixty-nine percent of the aggregate value of the settlement). ¶10 Justice O'Connor warned against another "troubling [consequence]" of approving fee agreements without inquiring into any rational relationship between the fee and the recovery. Int'l Precious Metals Corp. v. Waters, 530 U.S. 1223, 1223 (2000) (O'Connor, J., statement respecting the denial of the petition for a writ of certiorari). Such fee agreements would "encourage the filing of needless lawsuits where, because the value of each class member's individual claim is small compared to the transaction costs in obtaining recovery, the actual distribution to the class will inevitably be minimal." Id. Justice O'Connor's concerns are relevant when class attorneys are awarded fees based on a settlement agreement. The claimed transaction costs for this simple litigation are curiously high-eight attorneys and two paralegals from four firms in four different states racked up over 7,100 hours to secure a $140.00 recovery for about 310 class members. The trial court's attorney-fee award reflected a preposterous number of attorney and paralegal hours given the minimal and paltry recovery. On remand, the trial court must act with a wise and courageous sword to sever the unreasonable attorney fees and bring them in line with the recovery by about 310 class member of at most $47,040.00 in benefits. FOOTNOTES 1 It would be interesting to know how these class representatives came to be plaintiffs since no Oklahoma plaintiffs benefitted from the recovery. Did they seek out counsel? 2 Title 12, Section 2023(G) of the Oklahoma Statutes is quoted at footnote 2 of this Court's opinion and does not need to be restated here. 3 In the lodestar method of calculating fees, the court multiplies the reasonable number of hours worked times a reasonable hourly rate. The court may then use an up or down multiplier based on Burk criteria to determine reasonable attorney fees. In the contingency fee method, the attorney-fee award is based on a percentage of the plaintiffs' recovery. 4 Rule 3.2 of the ORPC provides: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." 5 This does not include nine pending claims with the potential recovery of $1,260.00.

f2025702-789f-4159-8db3-3b1fc6277d6b

Perry v. City of Norman

oklahoma

Oklahoma Supreme Court

PERRY v. CITY OF NORMAN2014 OK 119Case Number: 113109Decided: 12/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ROBERT RILEY PERRY, Plaintiff/Appellant, v. THE CITY OF NORMAN, a municipal corporation, Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY Honorable Tracy Schumacher, Trial Judge ¶0 The plaintiff/appellant, Robert Perry, filed a lawsuit against the defendant/appellee, City of Norman, alleging that, after Norman police officers beat Perry, he required several surgeries. Perry alleged the City was liable for the police officer's use of excessive force in violation of art. 2, §30 of the Okla. Const. pursuant to our pronouncement in Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994. The City sought to dismiss the lawsuit arguing that: 1) a Bosh claim is inapplicable to police officers, but even if it were applicable, such a claim is only available when a plaintiff otherwise has no recourse; and 2) Perry should have sought to recover pursuant to the Oklahoma Governmental Tort Claims Act, (OGTCA) 51 O.S. 2011 §§151 et seq. The trial court dismissed the action. Perry appealed and we retained the cause. We hold that a Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, claim for excessive force against a municipality, as applied to police officers and other law enforcement personnel, may not be brought against a municipality when a cause of action under the OGTCA is available. TRIAL COURT AFFIRMED. Rand C. Eddy, Riley W. Mulinix, Oklahoma City, Oklahoma, for Appellant. Rickey J. Knighton II, Kristina Bell, Norman, Oklahoma, for Appellee. KAUGER, J.: ¶1 The dispositive question presented is whether a Bosh v.Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, claim for excessive force against a municipality, as applied to police officers and other law enforcement personnel, exists if an alternative cause of action may be pursued under the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 §§151 et seq. (OGTCA). We hold that a Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, claim for excessive force, as applied to police officers and other law enforcement personnel, may not be brought against a municipality when a cause of action under the OGTCA is available. ALLEGED FACTS ¶2 According to the appellant, Robert Riley Perry (Perry), he and his friends attended the Norman Music Festival (Festival) in Norman, Oklahoma, on April 26, 2013. At approximately 2:00 a.m. on the early morning of April 27, 2013, Perry and his friends left the Festival on bicycles to go home. On the way home, a Norman police officer, also on a bicycle, approached Perry's friends. The officer began issuing citations to Perry's friends for running a stop sign on their bicycles. ¶3 The officer also asked Perry if he was interfering with the traffic stop. Perry responded that he was just waiting for his friends so they could continue home. The officer then rapidly approached Perry and threw his arm, with nightstick in hand, around Perry's throat and placed him in a choke hold with extreme force to his neck. Perry, frightened, began fighting for air and struggled to get out of the choke hold in order to breathe. ¶4 As more police officers arrived at the scene, they slammed Perry over onto his stomach with several officers' knees and elbows pressed into his back and limbs, forcing him to the ground. Perry had committed no crime and was not resisting arrest. While on the ground, an officer grabbed Perry's arm and violently and quickly twisted it back causing the bone behind his elbow to sustain a large fracture. Perry experienced extreme pain and tunnel vision and eventually became unconscious from the shock of the fracture and the lack of air due to the choke hold. ¶5 As a result of the attack, Perry has undergone several medical procedures including two surgeries due to the arm fracture. On March 20, 2014, Perry filed a lawsuit in the District Court of Cleveland County against the City of Norman (the City), which was the police officers' employer. He did not name any of the individual police officers involved as defendants. Perry alleged that the police officers, acting within the scope and course of their employment with the City, acted with the intent to use excessive force in violation of art. 2, §30 of the Oklahoma Constitution.1 He also alleged that the City was liable for the police officers' use of excessive force under the doctrine of respondeat superior because the officers were acting within the scope of their employment when the incident occurred. ¶6 On April 15, 2014, the City filed a motion to dismiss, arguing that: 1) Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, our most recent constitutional excessive force case, was inapplicable to police officers; 2) the relief sought was available on non-constitutional grounds; and 3) Perry did not allege any facts which would support a cognizable legal theory to recover from the City. ¶7 In an order filed July 9, 2014, the trial court granted the City's motion to dismiss. It determined that: 1) although the rationale of Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994 applies to police officers, Bosh only recognized a cause of action for those who would otherwise not have one; and 2) because Perry has an alternative cause of action under the OGTCA, he had failed to state a Bosh claim. Perry appealed the trial court's dismissal on August 6, 2014, and requested that we retain this public interest cause. We retained the appeal on September 5, 2014. A Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, CLAIM FOR EXCESSIVE FORCE AGAINST A MUNICIPALITY, AS APPLIED TO POLICE OFFICERS AND OTHER LAW ENFORCEMENT PERSONNEL, MAY NOT BE BROUGHT WHEN A CAUSE OF ACTION UNDER THE OKLAHOMA GOVERNMENTAL TORT CLAIMS ACT, 51 O.S. 2011 §§151 et seq. (OGTCA) IS AVAILABLE. ¶8 Perry argues that our holding last year in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, applies to this cause and the trial court erred in dismissing his lawsuit. The City contends that Bosh, supra, is inapplicable because Perry has a remedy available pursuant to the OGTCA. ¶9 In Bosh, supra, the United States District Court for the Eastern District of Oklahoma certified four questions to this Court which we reformulated into three. All three questions concerned the right of a detention center detainee to bring a cause of action for excessive force against jailers for injuries sustained when the jailers attacked the detainee. Bosh was the progeny of Washington v. Barry, 2002 OK 45, 55 P.2d 1036. Although the plaintiff in Washington failed to successfully state an actionable claim, we recognized that a private constitutional excessive force action may exist for prison inmates against prison officials. ¶10 As a result of the attack, the Bosh detainee filed a lawsuit against the detention center. The detention center asserted that it was immune from state tort claims based on exemptions from liability provided by the OGTCA, specifically, for the operation of any prison, jail or correctional facility.2 The detainee argued that regardless of what the OGTCA immunizes, the Okla. Const. art. 2, §30 3 protects citizens from being physically abused by the employees of state and local entities that operate jails and correctional facilities, and such protection includes legal liability for such conduct. ¶11 We held that the Oklahoma Constitution, art. 2, §304 provides a detainee a private cause of action for excessive force notwithstanding the OGTCA. In doing so, we recognized the common law doctrine of respondeat superior which holds that: 1) a principal or employer is generally held liable for the wilful acts of an agent or employee acting within the scope of the employment in furtherance of assigned duties;5 2) employer liability extends when an employee's conduct is an assault of excessive force if the conduct also occurs within one's scope of employment;6 and 3) one acts within the scope of employment if engaged in work assigned, or if doing what is proper, necessary and usual to accomplish the work assigned or doing that which is customary within the particular trade or business.7 ¶12 For most occupations, committing an assault of excessive force on a third person would not be within the scope of an employee's employment, but there are certain occupations in which an employee's act is within the scope of employment if it is incidental to some service being performed for the employer or it arises out of an emotional response to actions being taken for the employer. Some examples of such occupations are police officers (whether on or off duty),8 daycare givers,9 nursing home caregivers,10 repossessors,11 and jailers,12 among others. ¶13 The complexity arises when the employer is a governmental entity or municipality such as the City in this cause because different rules apply. In Oklahoma, governmental entities who were once protected from tort liability through the doctrine of governmental immunity, were allowed to be sued when the Court, in Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, abrogated the doctrine and acknowledged the Legislature's right to enact sovereign immunity by statute. ¶14 The Legislature's Political Subdivision Tort Claims Act, now known as the OGTCA, became the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort. Subject to specific limitations and exceptions, governmental immunity was waived under the OGTCA and governmental accountability was extended to torts for which a private person would be liable, unless they were committed in bad faith or in a malicious manner. ¶15 Under the OGTCA, the question for governmental employer liability also hinges on whether one acted within the scope of employment by engaging in work assigned, or if doing what was proper, necessary and usual to accomplish the work assigned, or doing that which was customary within the particular trade or business. Consequently, governmental employees such as police officers, whether on duty or off duty, have been held to the possibility their conduct and use of excessive force may have occurred within the scope of employment subjecting their employers to liability. ¶16 In paragraphs 22 and 23 of Bosh, supra, we said: The Okla. Const. art. 2, §30 applies to citizens who are seized -- arrestees and pre-incarcerated detainees. In Washington, we declared that, not withstanding the provision of the OGTCA, a private action for excessive force exists pursuant to the Okla. Const. art 2, §9 for incarcerated persons. Having done so, and having explained that those not yet convicted are assured of even greater rights, it would defy reason to hold that pre-incarcerated detainees and arrestees are not provided at least the same protections of their rights, the same cause of action for excessive force under the Okla. Const. art. 2, §30. The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity. Therefore we answer the reformulated question and hold that the Okla. Const. art 2, §30 provides a private cause of action for excessive force, notwithstanding the requirements and limitations of the OGTCA. (Citations omitted, emphasis supplied.) ¶17 Under this rationale, our holding in Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, is applicable to police officers and any other law enforcement personnel applying excessive force against a citizen. The distinguishing fact here is that the Bosh plaintiff was barred from bringing an action under the provisions of the OGTCA, and the plaintiff in this cause is not. ¶18 In Bosh, the applicable provisions of the OGTCA expressly immunized the state and political subdivisions such as counties and municipalities from liability arising out of the operation of prison facilities.13 Consequently, without the excessive force action brought under the Oklahoma Constitution, the Bosh plaintiff would have had no avenue for recovery for his injuries whatsoever. ¶19 Here, employer liability for police officer's alleged excessive force conduct under the OGTCA is well settled.14 Because the plaintiff could have brought a claim for excessive force against the City under the OGTCA and potentially recovered for that claim, he was not left without a remedy. There is no rationale requiring the extension of a Bosh excessive force action brought under the Okla. Const. art. 2, §30 to this cause. Rather, the plaintiff's remedy belongs exclusively within the confines of the OGTCA and a jury's determination concerning whether the police officers were acting within the scope of their employment under the OGTCA, 51 O.S. 2011 §§151 et. seq. CONCLUSION ¶20 The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so, would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective. This is a harsh result; however, pursuant to our previous pronouncement in Bosh v. Cherokee Building Authority, 2013 OK 9, 305 P.3d 994, claims for excessive force against a municipality may not be brought against a governmental entity when a cause of action under the OGTCA is available. Because the plaintiff did not seek retribution for his injuries under the OGTCA, the trial court did not err in dismissing the cause. TRIAL COURT AFFIRMED. REIF, V.C.J., KAUGER, EDMONDSON, COMBS, JJ., concur. WINCHESTER, TAYLOR, JJ., concur by reason of stare decisis. COLBERT, C.J., WATT, GURICH, JJ., dissent. FOOTNOTES 1 The Okla. Const. art. 2, §30 provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized. 2 Title 51 O.S. Supp. 2012 §155 provides in pertinent part: The state or a political subdivision shall not be liable if a loss or claim results from: ... 24. Provision, equipping, operation or maintenance of any prison, jail or correctional facility, or injuries resulting from the parole or escape of a prisoner or injuries by a prisoner to any other prisoner; provided, however, this provision shall not apply to claims from individuals not in the custody of the Department of Corrections based on accidents involving motor vehicles owned or operated by the Department of Corrections;... 3 The Okla. Const. art.2, §30, see note 1, supra. 4 The Okla. Const. art.2, §30, see note 1, supra. 5 Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, ¶9, 305 P.3d 994; Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶5, 188 P.3d 158; N.H. Presbyterian Church, 1999 OK 88, ¶14, 998 P.2d 592. 6 Bosh v. Cherokee County Governmental Building Authority, see note 5, supra; N.H. v. Presbyterian Church, see note 5, supra. 7 Bosh v. Cherokee County Governmental Building Authority, see note 5, supra at ¶10; Tuffy's Inc. v. City of Oklahoma City, 2009 OK ¶7, 212 P.3d 1158; DeCorte v. Robinson, 1998 OK 87, ¶12, 969 P.2d 358; Nail v. City of Henryetta, 1996 OK 12, ¶11, 911 P.2d 914. 8 Nail v. City of Henryetta, see note 7, supra, wherein a police officer shoved an intoxicated 15-year-old who was handcuffed and not resisting arrest; DeCorte v. Robinson, see note 7, supra [off duty police officer who helped arrest a civilian struck and injured civilian resulting in herniated disk]; Tuffy's Inc. v. City of Oklahoma City, see note 7, supra [Officers allegedly attacked, harassed and assaulted customers at night club]; Fuller v. Odom, 1987 OK 64, ¶3, 741 P.2d 449 [Officer causing a car accident]; Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 2010 OK 9, ¶29, 230 P.3d 869 [Officer injured girl during arrest]. 9 Baker v. Saint Francis Hospital, 2005 OK 36, ¶18, 126 P.3d 602, [A jury question was presented as to whether a day care caregiver was acting within the scope of employment so as to hold her employer liable for intentionally striking a child's head on a corner of shelf.] 10 Rodebush v. Oklahoma Nursing Home, Ltd., 1193 OK 160, 867 P.2d 1241 [Nursing home employee forcefully slapped combative Alzheimer's patient]. 11 Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 40 P.2d 1090 [Employee fought with customer while attempting to repossess an automobile battery]. 12 Bosh v. Cherokee County Governmental Building Authority, see note 5, supra at ¶10; Washington v. Barry, 2002 OK 45, 55 P.3d 1036. 13 Title 51 O.S. Supp. 2012 §155, see note 3, supra. 14 See 51 O.S. 2011 §§155(4), 155(6), 155(16) and the cases which have determined that the OGTCA cannot be construed as providing blanket immunity for police officers acting within the scope of their employment. Nail v. City of Henryetta, see note 7, supra wherein a police officer shoved an intoxicated 15-year-old who was handcuffed and not resisting arrest; DeCorte v. Robinson, see note 7, supra [off duty police officer who helped arrest a civilian struck and injured civilian resulting in herniated disk]; Tuffy's Inc. v. City of Oklahoma City, see note 7, supra [Officers allegedly attacked, harassed and assaulted customers at night club]; Fuller v. Odom, see note 8, supra [Officer causing a car accident]; Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., see note 8 supra [Officer injured girl during arrest].

0a1c6c40-1979-4b00-b05c-6ac8caa96347

Montgomery v. Potter

oklahoma

Oklahoma Supreme Court

MONTGOMERY v. POTTER2014 OK 118Case Number: 111928Decided: 12/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RACHAEL MONTGOMERY, individually, Plaintiff/Respondent, RACHAEL MONTGOMERY, as natural mother of Noah Orcutt, and NOAH ORCUTT, Plaintiffs, v. MORGAN POTTER, Defendant/Petitioner. CERTIORARI TO REVIEW INTERLOCUTORY ORDER ¶0 Plaintiffs filed a negligence action against Defendant arising out of an automobile accident. Plaintiffs were rear-ended by Defendant and seek damages for medical expenses, personal injury, and pain and suffering. Plaintiff, Rachael Montgomery, was an uninsured driver at the time of the accident. Citing 47 O.S. Supp. 2011, § 7-116, which prevents uninsured motorists from recovering certain non-economic damages such as pain and suffering, Defendant denies that Montgomery is entitled to damages for pain and suffering. Plaintiffs argue that § 7-116 is a special law in violation of art. 5, § 46 of the Oklahoma Constitution and filed a motion for declaratory relief declaring the statute unconstitutional. The trial court ruled in Plaintiffs' favor, striking down § 7-116 as an improper, special law. Defendant appealed and the trial court certified its ruling for interlocutory review. We previously granted the writ of certiorari. PETITION FOR CERTIORARI TO REVIEW A CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED; AFFIRMED. Joseph M. Norwood, Norwood Law Firm, Tulsa, Oklahoma, for Plaintiff/Respondent. Reid E. Robison, Philip D. Hart and Michael K. Avery, McAfee & Taft, Oklahoma City, Oklahoma, and J. Craig Buchan and Jennifer Ary-Hogue, Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, Tulsa, Oklahoma, for Defendant/Petitioner. Winchester, J. ¶1 This appeal involves an action for auto negligence arising out of injuries sustained by Plaintiffs, Rachael Montgomery ("Montgomery"), and her three year old son, Noah Orcutt, on December 13, 2011. Montgomery was rear-ended by Defendant, Morgan Potter, who claims that her car brakes failed. As a result of Defendant's negligence, Montgomery alleges she sustained a severe back injury that requires surgery. Among other damages sought by Plaintiffs, Montgomery seeks damages for her pain and suffering. ¶2 At the time of the accident, Montgomery admits that she was driving uninsured as her automobile insurance had lapsed approximately sixty days prior. Pursuant to 47 O.S.2011 § 7-116, Defendant alleges that Montgomery is precluded from seeking pain and suffering damages due to her status as an uninsured driver. Plaintiffs challenge the constitutionality of § 7-116, asserting that the statute is a special law violative of art. 5, § 46 of the Oklahoma Constitution. Montgomery filed a motion for declaratory relief asking the trial court to find § 7-116 unconstitutional. The trial court agreed and declared the statute an unconstitutional special law. Defendant appeals by certified interlocutory order and we previously granted certiorari. DISCUSSION ¶3 The sole issue before the Court is whether 47 O.S.2011, § 7-116 is a constitutional law. Section 7-116, known as the No Pay, No Play law, prohibits uninsured drivers from the recovery of damages for pain and suffering in automobile accident cases with the exception of certain circumstances, none of which applies to Montgomery.1 ¶4 Among other arguments, Plaintiffs assert § 7-116 violates the special law proscription of art. 5, § 46 of the Oklahoma Constitution which provides that the Legislature may not create a local or special law involving specific activities enumerated therein. Among the prohibited activities, the constitutional provision forbids a special law "[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts." Okla. Const. art. 5, § 46. ¶5 Plaintiffs contend the statute is an impermissible special law which affects only victims of auto accidents who are uninsured, carving out this special class from the more general class of all victims of auto accidents. Defendant insists that the statute applies to all uninsured drivers equally and is general in its application. We disagree with Defendant's characterization of the class and find § 7-116 to be an unconstitutional, special law. ¶6 This Court faced a similar special law challenge in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, where we struck down a statute as an unconstitutional special law where it required claimants in medical malpractice actions, as opposed to the more general class of all negligence claimants, to attach an affidavit of merit upon the filing of an action. In Zeier, the Court held: The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things. In a special laws attack under art. 5, § 46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things. The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the § 46 interdiction of special law has been offended. Zeier, 2006 OK 98, ¶ 13, 152 P.3d at 867. (Footnotes omitted.) (Emphasis original.) ¶7 A statute is a special law where a part of an entire class of similarly affected persons is separated for different treatment. Reynolds v. Porter, 1988 OK 88, ¶ 14, 760 P.2d 816, 822. In this case, the class of similarly affected persons is plaintiffs in cases of automobile negligence. A general class has been identified in 23 O.S.2011, § 61.2 which allows for all plaintiffs with bodily injury the ability to recover pain and suffering.2 Section 7-116 has targeted specific individuals within that class, those not in compliance with Oklahoma's Compulsory Insurance Law, to receive special treatment in the form of limited remedies, regardless of whether the plaintiff was at fault in causing the accident or not.3 The statute holds uninsured drivers to different and much stricter standards than other plaintiffs in automobile negligence cases. ¶8 Like the claimants in Zeier, it is clear that § 7-116 "sets aside a subset of negligence plaintiffs for different" treatment based on the status of a plaintiff's automobile insurance coverage. Zeier, 2006 OK 98, ¶ 17, 152 P.3d at 868. Section 7-116 creates an impermissible special class by restricting damages in civil negligence actions for victims who also happen to be uninsured drivers while the general class of automobile accident victims is not prevented from the recovery of damages for pain and suffering. Because 47 O.S.2011, § 7-116 impacts less than an entire class of similarly situated claimants it is under-inclusive and, therefore, we find it to be an unconstitutional special law prohibited by art. 5, § 46 of the Oklahoma Constitution. PETITION FOR CERTIORARI TO REVIEW A CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED; AFFIRMED. ALL JUSTICES CONCUR FOOTNOTES 1 Specifically, the statute provides that "in any civil action to recover damages arising out of an accident involving the operation of a motor vehicle or for any claim against the motor vehicle liability insurance coverage of another party, the maximum amount that a plaintiff or claimant may receive, if the plaintiff or claimant is not in compliance with the Compulsory Insurance Law, shall be limited to the amount of medical costs, property damage, and lost income and shall not include any award for pain and suffering." 47 O.S.2011, § 7-116 (A). Section 7-116 does not apply: (1) where the claimant was injured by another driver operating under the influence of drugs or alcohol, (2) to passengers in the vehicle who were not the owner of the vehicle, (3) to claims for wrongful death, (4) if the claimant was not in the vehicle involved in the accident, (5) to accidents intentionally caused by another, by one who left the scene of the accident or by one who was acting feloniously at the time, (6) if the claimant is a dependent whose parents were not in compliance, or (7) the claimant had previously been validly covered, unless the claimant had received notice of termination at least 30 days before the accident. 47 O.S.2011, § 7-116 (B). 2 Title 23 O.S.2011, § 61.2 provides that "in any civil action arising from a claimed bodily injury, the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed" $350,000. 3 The Compulsory Liability Insurance Law is codified as Article VI of Chapter 7 of Title 47. It begins at 47 O.S. 2011 §§ 7-600 et seq.

6bc3887e-e693-454d-9663-6d1a51bfe079

Vandelay Entertainment, LLC v. Fallin

oklahoma

Oklahoma Supreme Court

VANDELAY ENTERTAINMENT, LLC v. FALLIN2014 OK 109Case Number: 113187Decided: 12/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. VANDELAY ENTERTAINMENT, LLC d.b.a. THE LOST OGLE, Appellant,v.MARY FALLIN, in her official Capacity as GOVERNOR OF THE STATE OF OKLAHOMA; STATE OF OKLAHOMA, ex rel. OFFICE OF THE GOVERNOR, Appellees. ON APPEAL FROM THE DISTRICT COURT FOR OKLAHOMA COUNTYHONORABLE BARBARA SWINTON, TRIAL JUDGE ¶0 Vandelay Entertainment, LLC d.b.a. The Lost Ogle filed suit in district court to obtain records that the Governor withheld when responding to Vandelay's Open Records Act request. The district court ruled the Governor had a common law privilege to withhold the records in question. Vandelay appealed and this Court retained the appeal. Upon review, we affirm on different grounds. AFFIRMED. Brady Henderson, ACLU of OKLAHOMA FOUNDATION, Oklahoma City, Oklahoma, Attorneys for Plaintiff/Appellant,Neal Leader, Senior Assistant Attorney General, Oklahoma City, Oklahoma, Attorney for Appellee. REIF, V.C.J.: ¶1 The legal controversy between Vandelay Entertainment, LLC d.b.a. The Lost Ogle and Governor Mary Fallin stems from the Governor's refusal to release certain records in response to a request by Vandelay1 pursuant to the Open Records Act, 51 O.S.2011 and Supp.2013, §§ 24 A. 1 - 24 A. 29. The material facts underlying this controversy are not in dispute. ¶2 Vandelay asked Governor Fallin to release all records relating to her decisions regarding funding and programs under the Affordable Care Act. In responding to this request, Governor Fallin released over 51,000 pages of written material, but withheld 100 pages under a claim of "executive privilege." In a letter to Vandelay dated March 29, 2012, the Governor's general counsel explained: "In this document production, the Governor has invoked several legal privileges, including ones involving senior executive branch officials who are offering advice and counsel to the governor." (Emphasis added). ¶3 Vandelay filed suit in district court pursuant to § 24A.17(B)(1)2 of the Oklahoma Open Records Act, to compel the Governor to release the records that were withheld. A copy of the March 29 letter from the Governor's general counsel was attached to Vandelay's petition. Vandelay disputed the Governor's claim of privilege, contending the withheld material was not specifically exempted from release by the Open Records Act, nor was it required to be kept confidential by any constitutional provision, statute, court decision or common law. In her answer, Governor Fallin acknowledged the March 29 letter and formally "invoked the doctrine of executive privilege with its deliberative process component" as a legal basis to withhold the material in question. ¶4 The parties presented the case for decision on cross motions for summary judgment. Citing 12 O.S.2011, § 2,3 the district court ruled that Oklahoma had preserved common law to govern matters not otherwise addressed by the Oklahoma Constitution, statute or court decisions. The district court further ruled common law recognized a deliberative process privilege, but directed the Governor to submit a privilege log for judicial review to ensure the withheld material fell within the privilege. ¶5 Satisfied with the trial court's summary judgment recognizing her claim of privilege, Governor Fallin waived the privilege and released the 100 pages previously withheld. In doing so, the Governor filed a notice informing the court of the waiver and documents release. Copies of the particular documents were not filed in the record. ¶6 Attached to this notice was a letter from the Governor's general counsel to Vandelay explaining the Governor's decision. This letter stated that the Governor's had theretofore acted (1) "To ensure that the Executive Privilege/Deliberative Process Privilege continue to be recognized in Oklahoma" and (2) "To ensure frank, candid and confidential discussions essential to the Governor's decision making remain confidential, because senior advisors need to present the Governor with conflicting ideas, thoughts and opinions without concern over the consequences that would follow from compelled public dissemination of their advice." (Emphasis added). ¶7 This letter further explained that "the passage of time since the deliberations took place has resulted in the deliberative advice becoming far less sensitive." The letter also related that the Governor released the withheld documents out of concern for "transparency and openness in government" and "in consultation with many of those who provided the advice in the documents." ¶8 Despite the release of the withheld material, Vandelay brought this appeal, contending the district court erred in recognizing a common law privilege exempting the Governor from complying with Vandelay's Open Records Act request. Because this issue is a matter of broad public interest and there is a likelihood of future repeated conflict between the Governor's claim of privilege and the Open Records Act, this Court finds Vandelay's appeal is not moot. Firefighters Pension v. City of Spencer, 2009 OK 73, ¶¶ 4-5, 237 P.3d 125,129-130. ¶9 These same considerations dictate that this Court should retain this appeal for decision. Upon de novo review,4 we agree with the trial court that Oklahoma Governors have a privilege to refuse to disclose advice they receive in confidence from "senior executive branch officials" when deliberating discretionary decisions and shaping policy. We do so, however, on grounds different than those articulated by the trial court. ¶10 In looking to common law, the trial court was no doubt persuaded by City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998), cited in the Governor's summary judgment briefing. This Colorado case sets forth a thorough discussion of the common law origin and evolution of executive privilege in general and the deliberative process component in particular. Id. at 1047-58. ¶11 The Colorado opinion points out that executive privilege originated in the eighteenth and nineteenth centuries within the concept of the English "crown privilege." Id. at 1047. The opinion also notes that the deliberative process component of executive privilege is often referred to as "the common sense-common law privilege." Id. at 1048. ¶12 Having existed as an aspect of executive office prior to the adoption of the Oklahoma Constitution, we must conclude that the people at Statehood intended to preserve this common law privilege for the office of the Governor by the constitutional declaration, "The Supreme Executive power shall be vested in a Chief Magistrate, who shall be styled 'The Governor of the State of Oklahoma.'" Article 6, § 2 of the Oklahoma Constitution. In using the word "supreme" to modify the term "executive power," we believe the people intended to vest the Governor with the complete or full-range of executive powers that were recognized at the time the Oklahoma Constitution was adopted. In other words, executive privilege is not just a vestige of common law, but is an inherent power of the Governor. ¶13 In Ford v. Board of Tax-Roll Corrections, 1967 OK 90, ¶ 21, 431 P.2d 423, 428, this Court recognized that inherent powers are reflected in the separation of powers clause in Article 4, § 1 of the Oklahoma Constitution. This clause states "the Legislative, Executive and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others." (Emphasis supplied by the Ford opinion). Id. at ¶ 15, 431 P.2d at 427. While the Ford case dealt with a question concerning the inherent power of the judicial branch, the principles and analysis this Court applied in recognizing the inherent power of the judiciary are the same for recognizing and protecting the inherent powers of the other coequal branches. ¶14 In Ford, this Court concluded the "powers properly belonging" to a branch of government were those "which [are] essential to the existence, dignity and functions [of the branch]" and include inherent powers. Id. at ¶ 21, 431 P.2d at 428 (citation omitted). One test for inherent power is whether the subject matter is "so ultimately connected and bound up with [a branch's function] that the right to define and regulate [the subject matter] naturally and logically belongs to the [branch of government]." Id. Governor Fallin's claim of executive privilege to protect confidential advice from "senior executive branch officials" meets this test. ¶15 Several provisions in the Constitution addressing the express powers of the Governor reflect that the Governor has discretion in exercising those powers. Article 6, § 6 provides "The Governor [as] Commander-in Chief of the militia of the State . . . may call out the same to execute the laws, protect the public health, suppress insurrection, and repel invasion." (Emphasis added). Article 6, § 7 states "The Governor shall have power to convoke the Legislature . . . on extraordinary sessions [to consider subjects] as the Governor may recommend for consideration." (Emphasis added). Article 6, § 9 declares "At every session of the Legislature . . . the Governor shall communicate by message . . . and shall recommend such matters to the Legislature as he [or she] shall judge expedient [and] communicate . . . such matters as he [or she] may elect . . . ." (Emphasis added). Article 6, § 10 provides "The Governor shall have power to grant . . . commutations, pardons and paroles . . . upon such conditions and with such restrictions and limitations as [the Governor] may deem proper . . . ." (Emphasis added). Furthermore, the exercise of discretion is clearly implied in the general veto power, Article 6, § 11; the line item veto for appropriation bills, Article 6, § 12; and the appointment power, Article 6, § 13. ¶16 In addition, statutory law also gives the Governor discretion to do certain acts. For example, 74 O.S.2011, § 2 provides "The Governor shall have the power to remove any officers appointed by him [or her] . . . and may then fill the same as provided in cases of vacancy." (Emphasis added). 74 O.S.2011, § 5 states "Whenever the Governor is satisfied that any crime has been committed within the state, and that the person charged therewith has not been arrested, or has escaped therefrom, in his [or her] discretion he [or she] may offer a reward . . . for the arrest and delivery . . . of the person so charged . . . ." (Emphasis added). 74 O.S.2011, § 7 declares "The Governor of the State of Oklahoma is hereby authorized, at the expense of the state, and within the limitations of the appropriation . . . to maintain in such manner as the governor deems necessary and appropriate, the mansion provided for his [or her] occupancy by the State of Oklahoma and to pay all expenses connected with said occupancy." (Emphasis added). ¶17 The sheer number, diversity and magnitude of discretionary decisions entrusted to the Governor demonstrate the public interest is best served by the Governor seeking and receiving advice to aid in deliberations and decision-making. The United States Supreme Court has observed "[T]hose who assist [executive decision-makers] must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." United States v. Nixon, 418 U.S. 683, 708 (1974)(superseded by statute on other grounds). The Court further observed that "[T]he confidentiality of [advisory] conversations and correspondence [is grounded in] the necessity for the protection of the public interest in candid, objective, and even blunt or harsh opinions in [executive] decisionmaking." Id. ¶18 The United States Supreme Court concluded these "considerations justif[y] a presumptive privilege." Id. The Court also concluded that such a privilege "is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." Id; accord, Freedom Foundation v. Gregoire, 310 P.3d 1252, 1258 (Wash. 2013) ("Refusal to recognize the gubernatorial communications privilege [to deny a legislatively authorized records request] would subvert the integrity of the governor's decision making process [thereby] damaging the functionality of the executive branch and transgressing the boundaries set by . . . separation of powers.") ¶19 In considering Governor Fallin's claim of privilege in the case at hand, we agree with the United States Supreme Court's view that "complete candor and objectivity from advisers calls for great deference from the courts" in determining the scope of executive privilege. 418 U.S. at 706. An Oklahoma Governor has no less need than the President of the United States to receive "candid, objective, and even blunt or harsh opinions" provided by "senior executive branch officials" as well as the need to refuse to disclose such advice that was solicited or received confidentially. ¶20 This subject matter is so ultimately connected and bound up in the Governor's executive branch function that the right to regulate receipt and disclosure of such advice by way of a privilege naturally and logically belongs to the executive branch. Ford, ¶ 21, 431 P.2d at 428. Stated another way, a privilege to protect confidential advice provided by "senior executive branch officials" is essential to the existence, dignity and functions of the Governor as chief executive and lies within the Governor's inherent power. Id. The principle of separation of powers expressly declared in Article 4, § 1 protects this privilege from encroachment by Legislative acts, such as the Open Records Act. ¶21 Unlike the claim of absolute privilege considered in United States v. Nixon, Governor Fallin has recognized that the deliberative process component of executive privilege that she claims in this case provides a qualified privilege. A qualified privilege is one that "applies in a particular instance if the purpose of the privilege is thereby served." City of Colorado Springs v. White, 967 P.2d at 1051. "The primary purpose of the [deliberative process] privilege is to protect the frank exchange of ideas and opinions critical to the government's decisionmaking [sic] processes where disclosure would discourage such discussion in the future[.]" Id. ¶22 A qualified privilege is also one in which the burden falls upon the government entity asserting the privilege. Id. at 1053. Had Governor Fallin not waived the privilege, she would have had the burden, upon in camera review, to demonstrate that the withheld documents fell within the privilege. Significantly, Governor Fallin's brief in support of her motion for summary judgment recognized this burden and requested the opportunity to demonstrate that the retained documents are protected by the deliberative process privilege. ¶23 Based on the limited summary judgment record presented for review, we need not determine the full scope of the deliberative process component of executive privilege, but must only delineate the burden in cases of advice solicited or received from "senior executive branch officials." We leave for a more appropriate case the issue of whether the privilege extends to advice solicited from parties outside of state government. ¶24 The burden in cases involving advice from "senior executive branch officials" includes a showing that the advice was (1) pre-decisional, and (2) deliberative (i.e., involved personal opinions, as opposed to purely factual, investigative material). Id. at 1052. In addition, the burden in the case at hand would also include a showing that (1) the Governor solicited or received advice from a "senior executive branch official" for use in deliberating policy or making a discretionary decision, (2) the Governor and the "senior executive branch official" knew or had a reasonable expectation that the advice was to remain confidential at the time it was provided to the Governor, and (3) the confidentiality of the advice was maintained by the Governor and the "senior executive branch official." While Governor Fallin did not define or specify whom she considers to be "senior executive branch officials," this group would reasonably include the Governor's general counsel and staff, the members of the Governor's cabinet, executive branch officers elected statewide, and executive branch agency heads appointed by the Governor. ¶25 Governor Fallin's answer and summary judgment briefing also acknowledged that the deliberative process privilege may even yield, when a substantial or compelling need for disclosure is shown. Once the Governor establishes that a document satisfies the criteria above, the burden shifts to the party requesting a document to show (1) a substantial or compelling need for disclosure, and (2) this need for disclosure outweighs the public interest in maintaining the confidentiality of the executive communication. Id. at 1051. A case in which there is reason to believe that documents may shed light on government wrongdoing may present a substantial or compelling need for disclosure that would outweigh the need for confidentiality. Id. ¶26 In recognizing the deliberative process component of executive privilege, we are mindful that the Legislature enacted the Open Records Act to assist the people in their oversight of State government and to aid the people in the exercise of their inherent power to alter or reform their government. Article 2, § 1 of the Oklahoma Constitution. This Court has said that public access to government files (1) "permits checks against the arbitrary exercise of official power and secrecy in the political process," (2) "gives private citizens the ability to monitor the manner in which public officials discharge their public duties," and (3) "ensures [performance] in an honest, efficient, faithful, and competent manner." Oklahoma Public Employees Association v. State ex rel. Oklahoma Office of Personnel Management, 2011 OK 68, ¶ 36, 267 P.3d 838, 851. ¶27 However, the deliberative process component of executive privilege is also grounded in a strong public interest. The Governor's need for confidential advice in deliberation of policy and decision-making is just as important to "[the people's] protection, security, and benefit, and to promote their general welfare," as the people's access to information. Article 2, § 1 of the Oklahoma Constitution. ¶28 By vesting the Governor with supreme executive power and delegating discretionary decision-making authority to the Governor, we believe the people placed checks on their access to certain types of confidential advice the Governor considers, and on legislative power to mandate disclosure of such advice. In place of on demand disclosure, in camera review and judicial balancing of competing public interests provide a middle ground accommodation when there is a question over whether the privilege exists or should be enforced. These safeguards fully protect the public from abuse of the privilege, while shielding communications ultimately found to warrant protection from public disclosure. ¶29 In conclusion, we hold that the trial court correctly ruled that the Governor has a privilege to protect confidential advice solicited or received from "senior executive branch officials" for use in deliberating policy and making discretionary decisions. We disagree, however, with the trial court's conclusion that this privilege rests solely upon common law. We hold that this privilege is a "power properly belonging" to the Governor's constitutional office as head of the executive branch and is protected by the separation of powers clause in Article 4, § 1. The need for confidential advice from "senior executive branch officials" for use in the Governor's deliberations and decision-making is "essential to the existence, dignity and functions" of the executive branch. Also, the need to protect such confidential advice is so ultimately connected and bound up with the executive function that the right to regulate disclosure of such confidential advice by way of a privilege naturally and logically belongs to the executive branch. ¶30 This privilege is not absolute, however, and is subject to the check and balance of in camera judicial review, in lieu of legislatively-mandated public disclosure. The Governor has the burden upon in camera judicial review to demonstrate that any material relating to such confidential advice satisfies the criteria set forth in this opinion. Even confidential advice that satisfies this criteria can be subject to disclosure where (1) the requesting party can show a substantial or compelling need for disclosure and (2) the need for disclosure outweighs the public interest in maintaining the confidentiality of the advice. AFFIRMED. ¶31 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, and GURICH, JJ., concur. ¶32 COMBS, J., concurs in part; dissents in part (by separate writing). FOOTNOTES 1 Section 24 A. 5 of the Open Records Act provides in pertinent part: All records of public bodies and public officials shall be open to any person for inspection, copying, or mechanical reproduction during regular business hours; provided: 1. The Oklahoma Open Records Act, Sections 24 A. 1 through 24 A. 28 of this title, does not apply to records specifically required by law to be kept confidential[;] . . . . 5. A public body must provide prompt, reasonable access to its records but may establish reasonable procedures which protect the integrity and organization of its records and to prevent excessive disruptions of its essential functions. . . . . 51 O.S.2011 § 24 A. 5. 2 This section provides in pertinent part: B. Any person denied access to records of a public body or public official: 1. May bring a civil suit for declarative or injunctive relief, or both, but such civil suit shall be limited to records requested and denied prior to filing of the civil suit; . . . . 12 O.S.2011, § 24A.17(B)(1). 3 This section states: The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object. 12 O.S.2011, §2. 4An order that grants summary relief disposes solely of law questions and is reviewable by a de novo standard of review. Under this standard, an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings. Manley v. Brown, 1999 OK 79, § 22 n.30, 989 P.2d 448, 455 n.30 (citations omitted). COMBS, J., concurring in part, dissenting in part: ¶1 While I concur with the majority's determination that the Governor possesses a qualified executive privilege based upon her inherent powers as Governor under the Oklahoma Constitution, I write separately to specify the nature of the privilege and to more clearly highlight its boundaries. The majority's use of the label "deliberative process privilege" to describe the constitutional privilege that shields the Governor's communications with her advisors blurs the line between distinct facets of executive privilege in a manner likely to cause confusion in the future. ¶2 The majority describes in detail the unique constitutional role of the Governor and the importance of candor in her communications with her advisors. The executive privilege that protects such candor is built in part upon the decision of the Supreme Court of the United States in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (superseded by statute on other grounds), which the majority favorably quotes at several points when it compares the duties and powers of the Governor to those of the President. The qualified executive privilege described by the Court in Nixon has also been labeled the "chief executive communications privilege" in order to distinguish it from the larger category of privileges that may fall under the umbrella of executive privilege. See Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U. L. Rev. 983, 984-85 (2007). ¶3 Such specificity is necessary in order to distinguish the chief executive communications privilege from the common-law-based deliberative process privilege theory relied upon by the trial court in this cause and adopted by the majority. The former is specific to the chief executive and rooted in the Constitution while the latter applies more generally to government actors in the executive branch and originated at common law. Both were originally federal doctrines that have been adopted to varying degrees by the states. The difference was thoughtfully set out by the United States Court of Appeals for the D.C. Circuit in In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), where the court stated: [w]hile the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege. ¶4 By relying heavily upon Nixon and the Governor's unique constitutional role and powers, while at the same time determining that it is the common-law-based deliberative process component of executive privilege that controls here, the majority engages in a blending of two distinct legal theories of executive privilege. The Supreme Court of Alaska, in Gwich'in Steering Committee v. State, Office of the Governor, succinctly described the difference: [w]e stated in Capital Information Group v. State, Office of the Governor that we considered the terms "executive privilege" and "deliberative process privilege" to be synonymous for purposes of that discussion. But the two terms are not identical. Instead, the deliberative process privilege is a "branch" of a broader group of governmental privileges. The roots of the deliberative process privilege lie in the common law; it protects the mental processes of government decisionmakers from interference, not constitutional notions of separation of powers. 10 P.3d 572, 579 (Alaska 2000) (emphasis added) (footnotes omitted). The majority opinion appears to supply a constitutional basis for the deliberative process privilege stemming from the separation of powers doctrine, which is a significant departure from the federal precedent responsible for both distinct branches of executive privilege. Further, the deliberative process privilege, as the In Re Sealed Case court noted, can apply to other executive branch entities besides the chief executive, and the majority's blending of the two ideas makes it difficult to distinguish where the Governor's constitution-based executive privilege ends and the deliberative process privilege begins. ¶5 Recognizing a clear distinction between the two doctrines helps prevent such confusion. While the chief executive communications privilege may be more all-encompassing with regards to documents and more difficult to surmount, it is also limited in nature and less broadly applicable than the deliberative process privilege. Most importantly, the chief executive communications privilege should not be construed so as to extend privileged status to all communications that may be made to the Governor. The court in In re Sealed Case considered this issue as well, and reached the following conclusion: [w]e believe therefore that the public interest is best served by holding that communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President. Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President. We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decisionmaking process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate. 121 F.3d at 751-52 (emphasis added) (internal citations omitted). ¶6 Complete candid objectivity from advisors may call for great deference from the courts, Nixon, 418 U.S. at 706, but the same cannot be said for potentially unsolicited advice and lobbying directed at the Governor that comes from outside the office of the chief executive, even if such advice factored into the decisional process on an issue. To allow otherwise would make the privilege overbroad and allow it to grow beyond its role in protecting the unique role of the chief executive. ¶7 In conclusion, I agree that the Governor's communications with her advisors are subject to a qualified executive privilege that has its basis in the Governor's inherent powers and the Constitution. However, that privilege is distinct from the common-law-based deliberative process privilege and I write separately to stress that I disagree with the majority's decision to blend these two branches of executive privilege into a hybrid entity.

1e2e6031-afd8-443d-a179-5f90c477de6e

Johnson v. Convalescent Center of Grady, LLC

oklahoma

Oklahoma Supreme Court

JOHNSON v. CONVALESCENT CENTER OF GRADY COUNTY LLC2014 OK 102Case Number: 111922Decided: 11/25/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MELODY JOHNSON, as next of kin of ARDA LEE CHURCHILL, Deceased, Appellee,v.CONVALESCENT CENTER OF GRADY COUNTY, LLC d/b/a GRACE LIVING CENTER - CHICKASHA, STILLGRADY, LLC, AMITY CARE, LLC, MIKE DIMOND, DON GREINER, INDIVIDUALLY AND d/b/a DON GREINER, TRUSTEE, KENNETH D. GREINER III REVOCABLE TRUST d/b/a DON GREINER TRUST, DON GREINER, BENEFICIARY/TRUSTEE, Appellants. APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY,OKLAHOMA, THE HON. RICHARD G. VAN DYCK, DISTRICT JUDGE ¶0 This is an interlocutory appeal from an order of the District Court of Grady County, Oklahoma. The trial judge denied the appellants' motion to compel arbitration on the ground that there was no binding arbitration agreement. We retained the appeal and affirm the trial court. TRIAL COURT AFFIRMED. L. Ray Maples, II, Travis Dunn, Jimmie A. Franklin and Nicole R. Snapp-Holloway, MAPLES LAW FIRM, Edmond, Oklahoma, and David W. Crowe, BAILEY,CROWE& KUGLER, LLP, Dallas, Texas, for the Appellee.Patrick M. Ryan, Phillip G. Whaley, Grant M. Lucky, RYAN WHALEY COLDIRON SHANDY PLLC, Oklahoma City, Oklahoma, and J. Michael Deyong, Gina K. Cheatham, DEYONG & CHEATAM, PA, Oklahoma City, Oklahoma, for the Appellants. EDMONDSON, J. ¶1 The issue is whether the trial court erred by denying appellants' (collectively referred to as Grace) motion to compel arbitration of plaintiff's wrongful death claims. The trial judge ruled that Tamera Nelson did not have authority to sign the arbitration agreement on behalf of her grandmother, Arda Lee Churchill, so no valid arbitration agreement existed. We agree with the trial court that no valid arbitration agreement existed because Tamera Nelson was not authorized to make health care decisions for her grandmother under the circumstances. The Health Care Power of Attorney required that Arda Lee Churchill's physician certify that she was not capable of making her own health care decisions and no such certification was made. ¶2 Grace Living Center-Chickasha (Grace) is a long-term care facility operating in Chickasha, Oklahoma. Arda Lee Churchill was a resident there from March 13, 2009, when she was admitted, until July 3, 2011, the date of her death. Tamera Nelson signed a Dispute Resolution Provision contained within the admission agreement as "Tamera Nelson POA." The plaintiff, Melody Johnson, is Ms. Churchill's daughter and next of kin. Melody Johnson sued Grace for the wrongful death of her mother. Grace moved to compel the dispute to arbitration based on the Dispute Resolution Provision contained in its admission agreement. ¶3 Grace argued the arbitration provision in the admission agreement was valid and covered the claims asserted by Johnson because Tamera Nelson was the authorized legal representative of Ms. Churchill by virtue of a General Durable Power of Attorney executed on December 23, 2008. Melody Johnson argued Tamera Nelson lacked authority under either the Durable Power of Attorney or the Health Care Power of Attorney to bind Ms. Churchill to the arbitration agreement. Therefore, there was no arbitration agreement; in any event, not one that would bind Melody Johnson, a non-signatory. On June 22, 2012, Melody Johnson dismissed the contract claims against all defendants. ¶4 After a telephonic hearing, the trial judged ruled that Tamera Nelson was not acting under any power of attorney on the date of Ms. Churchill's admission to Grace's nursing home. Melody Johnson, the only claimant, did not sign the arbitration agreement and the trial judge ruled that the derivative nature of wrongful death claims is not broad enough to mandate procedural defenses such as arbitration against one who did not sign an arbitration agreement. Based on the lack of any binding arbitration agreement, the trial judge ruled that the plaintiff was not required to arbitrate her claims against the defendants.1 ¶5 An order denying a motion to compel arbitration is an appealable order. 12 O.S. 2011 § 1879.2 The existence of an agreement to arbitrate is a question of law to be reviewed de novo. Rogers v. Dell Computer Corp., 2005 OK 51 ¶ 18, 138 P.3d 826, 831. The case was retained on the Court's own motion. ¶6 A court asked to compel arbitration of a dispute must first determine whether the parties agreed to arbitrate that dispute. Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). The existence of an arbitration agreement is governed by principles of state law. Id. If necessary, a court shall decide whether an agreement to arbitrate exists or whether a controversy is subject to an agreement to arbitrate. 12 O.S. 2011 § 1857(B). Oklahoma has recognized that although the Federal Arbitration Act, 9 U.S.C. § 2, favors arbitration when it is the parties' contractual choice of a remedial forum, courts will not impose arbitration upon parties where they have not agreed to do so. Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12 ¶22, 160 P.3d 936 (arbitration is a matter of consent, not coercion, citing Volt Info. Sciences Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468 (1989)). Consent to arbitrate is an essential component of an enforceable arbitration agreement. To assure that the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by it and whether the parties agreed to submit a particular dispute to arbitration. ¶7 Arda Lee Churchill executed a General Durable Power of Attorney naming Tamera Nelson as her agent, on December 23, 2008. It contains specific restrictions on the agent's powers: xi) Restrictions on Agent's Powers. Regardless of the above statements, my agent (1) cannot execute a will, a codicil or any will substitute on my behalf; (2) cannot change the beneficiary on any life insurance policy that I own; (3) cannot make gifts on my behalf; and (4) may not exercise any powers that would cause assets of mine to be considered taxable to my agent or my agent's estate for purposes of any income, estate, or inheritance tax, and (5) cannot contravene any medical power of attorney I have executed whether prior or subsequent to the execution of this Power of Attorney. (Emphasis added.) ¶8 Arda Lee Churchill granted a Medical Power of Attorney to Tamera Nelson on December 29, 2008. It defines "health care decision" to mean consent, refusal of consent, or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose, or treat an individual's physical or mental condition. It takes effect only if Arda Lee Churchill becomes unable to make her own health care decisions and that fact is certified in writing by her physician. Grace argues that signing a nursing home admission agreement that contains a Dispute Resolution Provision is not a "health care decision." ¶9 Plaintiff directs our attention to Moffet v. Life Care Centers of America, 187 P.3d 1140, 1147 (Colo. App. 2008), aff'd, 219 P.3d 1068 (Colo. 2009), in which the court concluded that a person who holds a medical durable power of attorney, in selecting a long-term health care facility, has the power to execute applicable admission forms, including arbitration agreements, unless that power is restricted by the principal. Plaintiff points to the fact that Grace's arbitration agreement was mandatory because Arda Lee Churchill would not be admitted without it.3 Plaintiff cites Dickerson v. Longoria, 995 A.2d 721, 739 (MD 2010): "If signing the arbitration agreement is necessary to receive health care, then the decision to sign the agreement is a health care decision because the receipt of health care depends on whether the patient agrees to arbitrate his or her claims. In that case, the decision to sign the arbitration agreement is effectively a decision about where and whether to receive health care, either from a facility that requires the patient to sign an arbitration agreement, from a facility that does not impose such a requirement, or from no facility at all." ¶10 We observe that Oklahoma's Do-Not-Resuscitate Act, 63 O.S. 2011 § 3131.3(6) defines "health care decision" as a decision to give, withhold, or withdraw informed consent to any type of health care including, but not limited to, medical and surgical treatments including life-prolonging interventions, nursing care, hospitalization, treatment in a nursing home or other extended care facility, home health care and the gift or donation of a body organ or tissue. Title 63 O.S. § 2200.21A(3) of the Oklahoma Uniform Anatomical Gift Act defines "health care decision" as any decision regarding the health care of the prospective donor. ¶11 The Medical Power of Attorney in this case would not become effective until a determination has been made in writing by her physician that Arda Lee Churchill lacked capacity to make those decisions. There is no record of a statement from her physician certifying that she lacked capacity to make her own health care decisions; therefore, the Medical Power of Attorney had not become effective at the time the admission documents were signed by Tamera Nelson. ¶12 Grace argues that it was the Durable Power of Attorney that gave Tamera Nelson authority to sign the admission contract/arbitration agreement binding Arda Lee Churchill. We cannot agree. The Durable Power of Attorney authorizes Arda Lee Churchill's agent to make decisions affecting her business and financial matters but it prohibits her from making decisions contrary to the Medical Power of Attorney. Grace does not controvert that signing the arbitration agreement was a requirement of admission to the facility. Where arbitration is a condition of admission, it becomes a "health care decision." Dickerson v. Longoria, 995 A.2d 721, 729 (Md. 2010).4 ¶13 In Dickerson, the Maryland high court took the position that if signing the arbitration agreement was not a requirement for admission, then signing the arbitration agreement was not a health care decision or a financial decision made on the decedent's behalf, but rather was a decision to waive his right of access to the courts and right to a trial by jury. The evidence reflected that the patient conferred on his agent the authority to make health care and financial decisions on his behalf, but no evidence suggested that the patient had authorized his agent to waive his right of access to the courts. Consequently, the Maryland court found that the estate was not bound by the arbitration agreement included in the nursing home's admission agreement. ¶14 The Durable Power of Attorney and the Health Care Power of Attorney in this case were executed less than one week apart, and the same person, Tamera Nelson, was named agent in each. This indicates an intention on Ms. Churchill's part to distinguish the powers and duties given to her agent in each document. The Durable Power of Attorney authorizes her agent to make, with limitation, decisions regarding her business and finances. Her health care agent is to make decisions on her behalf regarding her health care only if she becomes incapacitated, leaving her free to make her own health care decisions for as long as she is able to do so. ¶15 In Boler v. Security Health Care, L.L.C., 2014 OK 80, ___ P.3d ____, we affirmed an order of the District Court of Oklahoma County denying a nursing home's motion to compel arbitration, on the grounds that the decedent's heirs were not bound by an arbitration agreement executed by the decedent's representative. We held that the decedent's next-of-kin and personal representative did not sign the contract and were not bound by an arbitration agreement included in a contract of admission signed on the resident's behalf. The authority of the agent to sign the agreement on Cleo Boler's behalf was not in dispute. ¶16 The Medical Power of Attorney takes effect only if her physician certifies in writing that Arda Lee Churchill has become unable to make her own health care decisions. There is no dispute that no such certification was made by Arda Lee Churchill's physician. The trial judge determined that no valid arbitration agreement existed and under the facts in this case we agree. We find that Tamera Nelson lacked authority to bind her grandmother, Arda Lee Churchill, to arbitration. Thus, we need not address other rulings made by the trial judge and other issues raised in the petition in error. TRIAL COURT AFFIRMED. Concurs: Colbert, C.J., Reif, V.C.J., Kauger, Watt, Taylor, Combs, Gurich, JJ. Dissent: Winchester, J. FOOTNOTES 1 The trial judge also concluded that the FAA did not apply and that Oklahoma's Nursing Home Care Act, 63 O.S. § 1-1939(D)(E), prevents arbitration of the matter. The trial judge agreed with the plaintiff that Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16, remains good law in Oklahoma. These rulings were unnecessary based on the trial court's finding that no viable arbitration agreement existed. 2 12 O.S. 2011 § 1879 provides:A. An appeal may be taken from:1. An order denying a motion to compel arbitration . . . 3 R. at p. 73. 4 The Maryland court noted that signing the arbitration agreement was not a condition of admission, so it was not a health care decision, but was a decision regarding legal rights in the event of litigation.

4d24987f-0280-4571-923f-aacbb0717440

Fent v. Fallin

oklahoma

Oklahoma Supreme Court

FENT v. FALLIN2014 OK 105Case Number: 112867Decided: 12/02/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JERRY F. FENT, as a resident taxpayer, of the State of Oklahoma, and all other similar persons, Petitioner, v. MARY FALLIN, Governor of the State of Oklahoma, Respondent. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR DECLARATORY RELIEF AND WRITS OF INJUNCTION AND/OR MANDAMUS. ¶0 The petitioner, Jerry R. Fent, challenged Senate Bill No. 1246 alleging that because it is a revenue bill and subject to the requirements of the Oklahoma Constitution art. 5, §33, it fails to pass constitutional muster because the Legislature did not follow the Constitution when it was enacted. The parties concede that the bill does not meet the requirements of art. 5, §33 which was amended by the people in 1992. The cause hinges on the definition of "raising revenue." Because the ballot title reveals that the measure was aimed at only bills "intended to raise revenue" and "revenue raising bills," the obvious meaning of raising revenue in this context is to increase revenue. ORIGINAL JURISDICTION ASSUMED. DECLARATORY RELIEF DENIED. SENATE BILL NO. 1246 IS NOT UNCONSTITUTIONAL. Jerry R. Fent, Oklahoma City, Oklahoma, Pro Se Petitioner. Scott Pruitt, Oklahoma Attorney General, Patrick Wyrick, Solicitor General, Oklahoma City, Oklahoma, for the Respondent. Louis W. Bullock, Patricia W. Bullock, for Amicus Curae, Tulsa, Oklahoma, Steven H. Dow. KAUGER, J: ¶1 The dispositive issue is the definition of "raising revenue" for purposes of art. 5 §33 of the Okla. Const.1 The parties concede that if Senate Bill No. 12462 is a revenue bill subject to §33, it failed to comply with the constitutional requirements for its enactment. We hold that because the ballot title reveals that the measure was aimed at only bills "intended to raise revenue" and "revenue raising bills," the obvious meaning of raising revenue in this context is to increase revenue. FACTS ¶2 Senate Bill No. 1246 (SB 1246/the bill) is a bill concerning the modification of income tax rates in Oklahoma which do not become effective until fiscal year 2016.3 Bills for raising revenue are required to originate in the House of Representatives pursuant to art. 5, §33. This bill originated in the Senate and was passed by the Senate during the Second Regular Session of the Fifty-Fourth Legislature on February 27, 2014, with a vote of 32 ayes and 10 nays. It passed the House of Representatives on April 23, 2014, with a vote of 56 ayes and 30 nays. The Governor approved the bill on April 28, 2014, and filed it with the Secretary of State the same day. The effective date of the modification is August 28, 2014. ¶3 On May 22, 2014, the petitioner, Jerry R. Fent (petitioner), a State of Oklahoma resident taxpayer, filed this cause to challenge the validity of the Legislature's enactment of SB 1246. On June 20, 2014, another resident and taxpayer, Steven H. Dow, filed an amicus curiae brief which we accepted on July 11, 2014. The Court held oral argument on October 14, 2014. ¶4 The petitioner brought this original action arguing that SB 1246, a bill which reduces income taxes in some circumstances, was a "raising revenue" bill pursuant to the Okla. Const. art. 5, §33 and as such, it must comply with the Constitution's prescribed methods for enactment. He insists that whether legislation increases or decreases taxes is irrelevant if the purpose of the legislation is to collect taxes. The respondent contends that any bill that lowers income taxes is not "raising revenue," thus not falling within the confines of the Okla. Const. art 5, §33. This argument is premised on the proposition that in 1992, when the voters changed the requirements on how revenue bills must be passed in the Legislature, the voters understood the definition of "raising revenue" to mean increase only. SENATE BILL NO. 1246 IS NOT A REVENUE BILL SUBJECT TO THE LIMITATIONS ON PASSAGE AS PRESCRIBED BY ART. 5, §33 OF THE OKLAHOMA CONSTITUTION. ¶5 The Okla. Const. art 5, §33 concerns "revenue" bills. At statehood, it provided only three requirements: 1. All bills for raising revenue shall originate in the House of Representatives. 2. The Senate may propose amendments to revenue bills. 3. No revenue bill shall be passed during the last five days of the session. The Oklahoma Supreme Court considered this constitutional provision and defined "raising revenue" a year after statehood on December 21, 1908, in Anderson v. Ritterbusch, 1908 OK 250, 98 P. 1002, 22 Okla. 761. ¶6 Anderson did not involve a bill which decreased revenue but it did involve a challenge to a state statute which concerned the collection of taxes. The Court defined the use of the word "revenue" as a law in which taxes are levied for state purposes. However, it excluded from the definition laws which incidentally created revenue, if the primary purpose of the law was not revenue raising. In deciding the case, the Court did not define "revenue" as a decrease in taxes but it discussed the history of the origin of governmental "revenue" raising, describing the word "revenue" as: 1) laws made for the direct and avowed purpose of creating and securing revenue or public funds for the service of the government; 2) bills which impose taxes upon the people, either directly or indirectly, or lay duties, imposts, or excises for the use of the government; 3) confined to bills to levy taxes in the strict sense of the word, and has not been understood to extend to bills for other purposes which may incidentally create revenue. ¶7 The Court decided that the precise meaning of the term "raising revenue" as used in the Okla. Const. art. 5, §33 was to levy a tax to collect revenue; and that if the purpose of the act is to levy or collect taxes for the State, it must comply with the Okla. Const. art. 5, §33. The Anderson Court, quoting a frequently cited Alabama case,4 said that: It is clear to our minds that 'increase of revenue' is not implied in the language 'to raise revenue.' The transitive verb 'to raise' in this connection means 'to bring together; to collect; to levy; to get together for use or service, as to raise money. * * *' (Webster's Dictionary.) The precise meaning of this clause is to levy a tax as a means of collecting revenue. See Harper v. Commissioners of Elberton, 23 Ga. 566. The act in question in one sense reduced the taxes, for it assumed to relieve certain railroad property from county taxation. But it was nevertheless a bill to raise revenue. This is the only reference to the suggestion that the definition of "raise" used was meant to include a "decrease" in revenue, nor have we had a case since Anderson which directly concerned a revenue bill which "decreased" taxes. ¶8 We need not be concerned that the obvious purpose of SB 1246 is to levy income taxes for state purposes. The title of an act is used to determine legislative intent.5 The entirety of SB 1246 is concerned with the collection of income taxes. There isn't a provision of the bill that concerns another topic. The title of SB 1246 supports a determination that its purpose is to collect or levy taxes.6 ¶9 The voters amended art. 5, §33 of the Okla. Const. by State Question No. 640, Initiative Petition No. 348, at an election held on March 10, 1992. The 1992 Ballot Title of State Question 640 states: Shall an amendment to Section 33 of Article V of the Oklahoma Constitution which would require any bill passed by the legislature intended to raise revenue for support of state government be submitted to a vote of the people at the next general election before it can become effective; authorizing enactment of revenue raising bills without a vote of the people if 3/4 of the members of each house approve the bill and it is sent to the Governor for 90 days; and removing the authority of the legislature to prevent a referendum vote through enactment of an emergency clause be adopted? ¶10 Although no change was made to the definition of "raising revenue" in 1992, the respondent argues that the voters did not intend §33 to apply to bills which decrease state revenues, but that it was only meant to apply to increases. We agree. The State included in its brief newspaper articles discussing limiting the Legislature's taxing power, restricting tax hikes to bring accountability to the government. The intent of the framers and electorate in adopting the 1992 amendment must be given effect. Absent an ambiguity, the intent of the framers and electorate is settled by the language of the provision itself and the courts are not at liberty to search for its meaning beyond the provision. ¶11 More importantly, the intent of the framers and electorate is also reflected in the ballot title of the proposed amendment. The ballot title and text of the provision are to be read together, even if the text contains no ambiguities or absurdities.7 The ballot title is a contemporaneous construction of the constitutional amendment and weighs heavily in determining its meaning.8 ¶12 Constitutional provisions are not made for parsing by lawyers, but for the instruction of the people and the representatives of government, so that they may read and understand their rights and duties.9 Words used in a constitutional provision and an accompanying ballot title are to be construed in a way most familiar to ordinary people who voted on the measure.10 Words which do not of themselves denote that they are used in a technical sense, are to have their obvious meaning.11 ¶13 With this guidance in mind, the issue becomes what would the ordinary person who voted on the 1992 amendment, as explained by its ballot title, understand they were approving regarding the generation of State revenue. The amendment's text and ballot title both indicate that the people are establishing new restrictions on "revenue bills" and the original definition of this term includes bills that both increase and decrease revenue. However, the ballot title reveals that the measure was aimed only at bills "intended to raise revenue" and "revenue raising bills." The plain, popular, obvious and natural meaning of "raise" in this context is "increase." This plain and popular meaning was expressed in the public theme and message of the proponents of this amendment: "No New Taxes Without A Vote Of The People." ¶14 Reading the ballot title and text of the provision together reveals the 1992 amendment had two primary purposes. First, the amendment has the effect of limiting the generation of State revenue to existing revenue measures. Second, the amendment requires future bills "intended to raise revenue" to be approved by either a vote of the people or a three-fourths majority in both houses of the Legislature. ¶15 Clearly, one of the overriding purposes of the 1992 amendment to art. 5, §33 was to secure "tax relief." Given this fact, it is extremely doubtful that the people intended the popular vote or super-majority approvals to apply to a Legislative measure providing further relief by a reduction in the income tax rate. Although this Court approved the ballot title for the 1992 amendment in In Re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, 820 P.2d 772, we did not specifically address whether the ballot title informed the voters whether the measure was meant to apply to both tax increases and decreases. That issue was simply not before the Court. ¶16 We also traced the history of §33 in Calvey v. Daxon, 2000 OK 17, 997 P.2d 164. We explained that the 1992 amendment of art. 5, §33 changed the method state government may use to raise revenue. It did not change the clearly settled meaning of the terms, "revenue bill" or "bill for raising revenue." However, the issue in Calvey concerned the Legislature's act of transferring money from fee-generated funds to a special cash fund. Again, we did not specifically address the 1992 ballot title and whether it revealed that measure was aimed only at bills which voters would understand "raise" to mean "increase" only. Consequently, both In Re Initiative Petition No. 348, State Question No. 640, supra, and Calvey v. Daxon, supra, are distinguishable on their facts and are not otherwise dispositive of this cause. ¶17 A constitutional provision must be construed considering its purpose and given a practical interpretation so that the manifest purpose of the framers and the people who adopted it may be carried out.12 Nothing in the ballot title or text of the provision reveals any intent to bar or restrict the Legislature from amending the existing revenue measures, so long as such statutory amendments do not "raise" or increase the tax burden. Accordingly, we must conclude that to the extent that Anderson v. Ritterbusch, 1908 OK 250, 98 P. 1002, 22 Okla. 761 implies otherwise, it is expressly overruled. CONCLUSION ¶18 We hold that Senate Bill 1246 is not unconstitutional. The popular vote/super-majority approvals in art. 5, §33 of the Okla. Const. do not apply to the 2014 statutory enactment that reduced State income tax rates. To hold otherwise would defeat the evident object and purpose of the 1992 amendment to art. 5, §33. To the extent Anderson v. Ritterbusch, 1908 OK 250, 98 P. 1002, 22 Okla. 761 implies otherwise, it is expressly overruled. ORIGINAL JURISDICTION ASSUMED. DECLARATORY RELIEF DENIED. SENATE BILL 1246 IS NOT UNCONSTITUTIONAL. REIF, V.C.J., KAUGER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ., concur. WINCHESTER, J., concurs in result. COLBERT, C.J., WATT, J., not voting. FOOTNOTES 1 Art. 5 §33 of the Okla. Const provides that: Revenue bills - Origination - Amendment - Limitations on passage - Effective date - Submission to voters. A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. B. No revenue bill shall be passed during the five last days of the session. C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise, except as otherwise provided in subsection D of this section. D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the membership of the Senate and is submitted to the Governor for appropriate action. Any such revenue bill shall not be subject to the emergency measure provision authorized in Section 58 of this Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature, and acted on by the Governor. 2 Senate Bill No. 1246 is found at Okla. Sess. L. 2014, Ch. 195. It modifies income tax rates and requires the Board of Equalization to make certain determinations. 3 Oklahoma Tax Commission. Fiscal Impact Statement and/or Administrative Impact Statement. Second Regular Session, Fifty-Fourth Oklahoma Legislature. 4 Perry County et al. v. Selma, etc, Railway Company, 58 Ala. 546. 5 Jones, supra note 8 at ¶15; Atkinson v. Halliburton Co., 1995 OK 104, ¶17, 905 P.2d 772. 6 SB 1246, Okla. Sess. L. 2014, Ch. 195 states that: An Act relating to income tax; amending 68 O.S. 2011, Section 2355, as amended by Section 2, Chapter 253, O.S.L. 2013 (68 O.S. Supp. 2013, Section 2355), which relates to imposition of tax; deleting expiration date of specified tax rate levy; deleting tax rate applicable to certain time periods under specified circumstances; conforming references; amending 68 O.S. 2011, Section 2355, as last amended by Section 1 of this act, which relates to imposition of tax; providing expiration date for specified tax rate levy contingent upon specified circumstance; modifying tax rate applicable to certain amounts of taxable income during specified time periods; providing for certain tax levy contingent upon specified determination by State Board of Equalization; conforming language; imposing specified duties on State Board of Equalization related to implementation of certain top marginal income tax rates for specified time periods; prescribing method for specified computations for specified time periods; mandating certain action based on computations; repealing Section 3, Chapter 253, O.S.L. 2013 (68 O.S. Supp. 2013, Section 2355.1E), which relates to implementation of certain top marginal income tax rate; and providing for codification. 7 Southwestern Bell Telephone Co. v. Oklahoma State Bd. of Equalization, 2009 OK 72, ¶13, 231 P.3d 638. 8 Austin, Nichols & Co. v. Oklahoma County Bd. of Tax Roll Corrections, 1978 OK 65, ¶18, 578 P.2d 1200. 9 In re Assessment of Personal Property Taxes Against Missouri Gas Energy, 2008 OK 94, ¶19, 234 P.3d 938. 10 In re Assessment of Personal Property Taxes Against Missouri Gas Energy, see note 9, supra. 11 In re Assessment of Personal Property Taxes Against Missouri Gas Energy, see note 9, supra. 12 Austin, Nichols & Co. v. Oklahoma County Bd. of Tax Roll Corrections, see note 8, supra.

f21a8ac2-99fe-4c4c-8008-8e718faabed4

BD. OF CTY. COMMISSIONERS v. ASSOC. OF CTY. COMMISSIONERS OF OKLA. SELF-INSUR. GROUP

oklahoma

Oklahoma Supreme Court

BD. OF CTY. COMMISSIONERS v. ASSOC. OF CTY. COMMISSIONERS OF OKLA. SELF-INSUR. GROUP2014 OK 87Case Number: 112208Decided: 10/21/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. BOARD OF COUNTY COMMISSIONERS OF DELAWARE COUNTY AND SHERIFF OF DELAWARE COUNTY, Plaintiffs/Appellees, v. ASSOCIATION OF COUNTY COMMISSIONERS OF OKLAHOMA SELF- INSURANCE GROUP, Defendant/Appellant. CERTIORARI REVIEW OF A CERTIFIED INTERLOCUTORY ORDER FROM THE DISTRICT COURT OF ROGERS COUNTY ¶0 After settling a federal lawsuit brought by plaintiffs for $13,500,000.00, the sheriff of Delaware County and the County Commissioners demanded that the Association of County Commissioners of Oklahoma Self Insurance Group indemnify Delaware County for that amount. The insurance group agreed to contribute $1,000,000.00, less the defense costs already incurred, which amount was the per occurrence limit. Delaware County filed a lawsuit for breach of contract, and subsequently moved to amend its petition to add a bad faith claim, after the lawsuit had been transferred to Rogers County. The trial court judge, Hon. Dynda R. Post, granted the motion and subsequently denied the insurance group's motion to dismiss the bad faith claim. The trial court certified for immediate interlocutory appeal the order denying that motion to dismiss. CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER GRANTED; DISTRICT COURT'S CERTIFIED INTERLOCUTORY ORDER REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. Gerard F. Pignato, Clayton B. Bruner, PIGNATO, COOPER, KOLKER & ROBERSON, P.C., Oklahoma City, Oklahoma, for appellant. Phil R. Richards, Randy Lewin, Jessica N. Battson, RICHARDS & CONNOR, Tulsa, Oklahoma, for appellees. WINCHESTER, J. ¶1 This case is before this Court as a certified interlocutory order,1 review of which we have granted. The questions that are presented involve whether the Association of County Commissioners of Oklahoma Self-Insurance Group (ACCO-SIG) is an insurer pursuant to 36 O.S.2011, § 607.12 and whether, pursuant to the Governmental Tort Claims Act, 51 O.S. §§ 151-172, that organization is immune from tort liability for a breach of the duty of good faith and fair dealing. We hold that under the statutes the organization is an insurance company for some purposes, but is a governmental entity immune from a tort claim for the breach of the duty of good faith and fair dealing. I. BACKGROUND ¶2 ACCO-SIG is formed pursuant to the Interlocal Cooperation Act, 74 O.S., §§ 1001-1008, to pool self-insured reserves, claims and losses of its member counties, and provide property and liability protection plans to its participating members, which include 74 of Oklahoma's 77 counties. Delaware County (the county) is a participating member. On November 1, 2011, the county settled a lawsuit between it and fifteen plaintiffs who had sued the sheriff of Delaware County over allegations of sexual assault by employees of the county. The amount of the settlement was $13,500,000.00 plus interest. ¶3 ACCO-SIG agreed to contribute $1,000,000.00, less any defense costs it had already incurred, which amount was its per occurrence limit. The county filed a lawsuit on December 22, 2011, for breach of contract, claiming the contract required ACCO-SIG to indemnify the county for the entire settlement. After the lawsuit was transferred to Rogers County, the plaintiff/county moved to amend its petition to add a bad faith claim against ACCO-SIG. That group responded that the county failed to provide ACCO-SIG with adequate notice under the provisions of the GTCA, 51 O.S., §§ 151-172. It also claimed that the group was immune from the bad faith acts of its employees under the act. The district court granted the county's motion to amend. ACCO-SIG subsequently moved to dismiss the county's bad faith claim, which motion the district court denied. ¶4 Although we do not have the question before us, the county asserted in its argument that ACCO-SIG committed the tort by failing to find fifteen separate occurrences, which would expand the occurrence limits from the single occurrence limit of $1,000,000.00. Whether the occurrence is one or fifteen, we express no opinion on that issue. II. IS ACCO-SIG AN INSURER? ¶5 This issue is answered in City of Choctaw v. Oklahoma Municipal Assurance Group, 2013 OK 6, 302 P.3d 1164. OMAG, like ACCO-SIG, was formed pursuant to the Interlocal Cooperation Act, 74 O.S.2011, §§ 1001-1008, for the purpose of insuring against tort liability by entering into cooperative agreements, and included a governing board consisting of OMAG members, which determined the terms of the Plan. City of Choctaw, 2013 OK 6, ¶ 3, 302 P.3d at 1165. ¶6 Like the case presently before us, the plaintiff in the City of Choctaw case attempted to use 36 O.S.2011, § 607.1 to argue that OMAG was subject to the general rules of liability imposed on all insurers.3 City of Choctaw, 2013 OK 6, ¶ 10, 302 P.3d at 1166. This Court rejected that characterization. Regarding this issue, the Court held, "The statute makes OMAG an 'insurer' only for 'the kinds of insurance that the entity transacts.'" City of Choctaw, 2013 OK 6, ¶ 11, 302 P.3d at 1166. A governmental entity's cooperative insurance plan, which pools self-insured reserves, claims and losses of its member municipalities or counties, shares little in common with commercial enterprises that sell insurance for a profit to their shareholders. The relationship between these governmental entities is contractual in nature. The contracting parties have substantially more freedom to contract than an individual consumer dealing with a commercial for-profit insurance enterprise. All the contracting parties in a governmental cooperative insurance plan have equal interests in enforcing the contracts protecting the pooling of their resources. ¶7 The fact that OMAG was created to operate pursuant to 51 O.S.2011, § 167(C), and ACCO-SIG operates pursuant to 51 O.S.2011, § 169(C), makes no substantial difference because both statutes contain this sentence: "The pooling of self-insured reserves, claims or losses among governments as authorized in this act shall not be construed to be transacting insurance nor otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies." ¶8 Like OMAG, ACCO-SIG is not transacting insurance, nor is it otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies. The legislature has clearly spoken on this issue, and a reasonable rationale for such a rule is that with such voluntary governmental entities, the protections afforded members of the public with regards to private insurance is not necessary in the protections of municipalities and counties in this type of insurance plan. ¶9 We hold that ACCO-SIG, like OMAG, is not an insurer for all purposes. Although it clearly insures, ACCO-SIG is not subject to the general rules of liability imposed on all insurers. III. IS ACCO-SIG PROTECTED BY THE GOVERNMENTAL TORT CLAIMS ACT? ¶10 The applicable law to answer whether ACCO-SIG is protected by the provisions of the Governmental Tort Claims Act (GTCA) is found within that act. Title 51 O.S.2011, § 152.1(A), provides: "The State of Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts." The GTCA provides exceptions to this general rule by waiving its immunity only "to the extent and in the manner provided in this act." 51 O.S.2011, § 152.1(B). ¶11 The state and its political subdivisions are granted immunity by the GTCA.The definition for "state" found in the GTCA is "the State of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, public trust created pursuant to Title 60 of the Oklahoma Statutes of which the State of Oklahoma is the beneficiary, or other instrumentality. . . ." 51 O.S.Supp.2014, § 152(14). Subsection 152(11) includes counties within the definition of "political subdivision." An "agency" is defined as "any board, commission, committee, department or other instrumentality or entity designated to act in behalf of the state or a political subdivision. . . ." 51 O.S.Supp.2014, § 152(2). ¶12 Is ACCO-SIG designated to act in behalf of the county? If so, it comes within the umbrella of protection of the GTCA. The phrase "on behalf of" can be defined as "in the interest of: as the representative of: for the benefit of:" 4 The facts as revealed to this Court support a legal conclusion that the insurance contracts from ACCO-SIG are executed in the interest of and for the benefit of the member counties, not for private citizens, not for private companies operating for profit, but solely for member counties. ACCO-SIG's sole reason for existence is to provide property and liability plans for its member counties. ACCO-SIG fits the definition of "agency" under the GTCA and therefore falls within its sovereign immunity protection. ¶13 Delaware County argues that if ACCO-SIG is protected, then insurance companies from the private sector that provide coverage for counties would also be protected. There are distinguishing characteristics here. The funds received by ACCO-SIG come from counties, which funds come from the payment of taxes to the sovereign. The policy behind sovereign immunity includes protection of its funds. Providing immunity from tort claims against the state and its political subdivisions, which includes counties and agencies, is the policy behind the GTCA. Companies whose business is to insure all qualified persons or businesses that apply for insurance coverage receive their premiums from the private sector, in addition to public entities. Their profits come from premiums and investments. They are not primarily organized to benefit governmental entities, but to provide a profit for their investors. Such insurance companies are not entitled to the protection of sovereign immunity. ¶14 In a discussion of sovereign immunity, the United States Court of Appeals for the Seventh Circuit articulated the central and foundational principle behind the concept of sovereign immunity, which is "the inherent right of the sovereign to be immune from private suit." Nelson v. La Crosse County District Attorney, 301 F.3d 820, 826 (7th Cir. 2002). We infer that the policy provided by the GTCA and the intent of the Oklahoma Legislature in its enactment of the GTCA was to protect this foundational principle by statute. ¶15 Therefore, ACCO-SIG is immune from liability for the tort of bad faith conduct in payment of claims because its employees are not acting within the scope of their employment if they are acting in bad faith. Scope of employment means: "performance by an employee acting in good faith within the duties of the employee's office. . . ." 51 O.S.Supp.2014, § 152(12). See, Fehring v. State Insurance Fund, 2001 OK 11, 19 P.3d 276. Accordingly, the trial court erred in denying ACCO-SIG's motion to dismiss Delaware County's bad faith claim. The trial court is instructed to grant the motion to dismiss that portion of Delaware County's claim against ACCO-SIG. CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER GRANTED; DISTRICT COURT'S CERTIFIED INTERLOCUTORY ORDER REVERSED; CAUSE REMANDED WITH INSTRUCTIONS. CONCUR: REIF, V.C.J., WINCHESTER, EDMONDSON, TAYLOR, COMBS and GURICH, JJ. CONCURS IN RESULT: KAUGER, J. DISSENT: COLBERT, C.J. and WATT, J. FOOTNOTES 1 12 O.S.2011, § 952(b)(3) provides: "(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof . . . "3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. . . ." 2 Title 36 § 607.1 has been amended. At the time the petition was filed, December 22, 2011, this statute provided: "Notwithstanding any other provision of law, an entity organized pursuant to the Interlocal Cooperation Act, Section 1001 et seq. of Title 74 of the Oklahoma Statutes, for the purpose of transacting insurance shall be considered an insurer at such time that the entity has within a twelve-month period received aggregate premiums of One Million Dollars ($1,000,000.00) for all kinds of insurance that the entity transacts. Such an entity shall be eligible to qualify for and hold a certificate of authority to transact insurance in this state." The amended statutes may be found in 2013 Okla.Sess.Laws, ch. 306, § 1, and 2014 Okla.Sess.Laws, ch. 39, § 1, eff. Nov. 1, 2014. 3 ACCO-SIG recently filed a document with this Court entitled "Petitioner's Notice to The Supreme Court of Oklahoma." In that document, ACCO-SIG calls our attention to Senate Bill 2026, that will take effect November 1, 2014. That law amends 36 O.S.2011, § 607.1, and provides as follows: "A. An entity organized pursuant to the Interlocal Cooperation Act (an "Interlocal Entity") for the purpose of transacting insurance, except those Interlocal Entities created pursuant to the terms of The Governmental Tort Claims Act, shall be considered an insurer at such time that the entity has within a twelve-month period received aggregate premiums of One Million Dollars ($1,000,000.00) for all kinds of insurance that the entity transacts. Such an entity shall be eligible to qualify for and hold a certificate of authority to transact insurance in this state." Emphasis is added to reveal the amendment. ACCO-SIG asserts that this change supports its view that the legislative intent to exempt Interlocal Entities, like itself, from the purview of the current version of § 607.1(A). The county answers that the amendment signifies, not a clarification of the previous statute, but a new intent expressed by the present amendment. ACCO-SIG replied to the county's answer. However, the amendment and these arguments do not change this Court's view stated in this opinion. 4 Merriam-Webster Unabridged Dictionary online, http://unabridged.merriam-webster.com/unabridged/behalf.

99f2059c-5526-4f7e-b311-2dfccd524b7b

Trinity Baptist Church v. Brotherhood Mutual Insurance Services, LLC

oklahoma

Oklahoma Supreme Court

TRINITY BAPTIST CHURCH v. BROTHERHOOD MUTUAL INSURANCE SERVICES, LLC2014 OK 106Case Number: 113072Decided: 12/09/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. TRINITY BAPTIST CHURCH, Plaintiff/Appellant,v.BROTHERHOOD MUTUAL INSURANCE SERVICES, LLC, Defendant,andSOONER CLAIMS SERVICES, INC., Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYHONORABLE PATRICIA G. PARRISHDISTRICT JUDGE ¶0 A church filed a claim with its insurer for damage to its sanctuary after a severe winter storm. The insurer hired an independent insurance adjuster to adjust the claim. After a lengthy process, the church filed suit against both its insurer and the independent adjuster alleging breach of contract, bad faith, and gross negligence. The church settled with its insurer, and the trial court granted summary judgment for the independent adjuster. We affirm, on the ground that the independent adjuster: 1) was not subject to the implied covenant of good faith and fair dealing as it was not a party to the insurance contract and had no special relationship with the insured; and 2) owed no legal duty to the insured that would subject it to liability in tort for negligent adjustment of the claim. JUDGMENT OF THE TRIAL COURT IS AFFIRMED. CAUSE DISMISSED. Ryan M. Oldfield, Oldfield & Buergler, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant.John Wiggins, Wiggins, Sewell & Ogletree, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant.George w. Dahnke, Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee. COMBS, J.: ¶1 The primary issues presented on appeal are: 1) whether a special relationship existed between an insured entity and an independent adjuster hired by the insurer, sufficient to subject the independent adjuster to the implied covenant of good faith and fair dealing arising under the insurance contract; and 2) whether an independent insurance adjuster owes a legal duty to the insured such that it may be liable to the insured for negligence in its adjustment of the claim. This Court determines the answer to both questions is no. I. FACTS AND PROCEDURAL HISTORY ¶2 Trinity Baptist Church (Trinity) purchased an insurance policy for its property from Brotherhood Mutual Insurance Company (Brotherhood)1, effective (as amended) from July 1, 2009, through July 1, 2010. On December 24, 2009, a powerful winter storm struck the Oklahoma City area, which Trinity alleged resulted in significant damage to its church property due to accumulation of snow and ice on its sanctuary building. Trinity filed a claim with Brotherhood on or about January 12, 2010, asserting damage caused by the storm. ¶3 On January 15, 2010, Brotherhood retained Sooner Claims Services, Inc. (Sooner), as an independent adjuster to investigate Trinity's claim, pursuant to the provisions of a Limited Assignment sent to Sooner on the same day. The Limited Assignment provided, among other things, that Sooner was: 1) not to make coverage commitments to the insured; 2) not to send written correspondence to the insured except as necessary to confirm appointments, collect necessary documentation, or provide a complete estimate; 3) to personally inspect the losses; and 4) provide a descriptive report to if a loss was possibly not covered so that a Brotherhood adjuster could make a coverage determination. ¶4 Trinity disputes that Sooner stuck entirely to the terms of its Limited Assignment over the course of its investigation, arguing that Sooner's representative made coverage recommendations to Brotherhood in contravention of the Limited Assignment.2 Regardless, Trinity agreed that Sooner had no authority to make coverage determinations to it. Trinity also agreed that Sooner's evaluations and estimates of damages were submitted directly to Brotherhood and it was Brotherhood that determined what documentation generated by Sooner would be provided to Trinity. Trinity also agreed that Sooner's services were charged at Sooner's customary hourly rate and that Brotherhood reimbursed Sooner for tis expenses. ¶5 After a lengthy investigation and claims process, that came to involve several other contractors and entities not party to the lawsuit, Trinity eventually filed suit in the District Court of Oklahoma County on February 18, 2011. In its First Amended Petition, filed on March 9, 2011, Trinity asserted bad faith and breach of contract claims against Brotherhood for its handling and investigation of Trinity's claim. Trinity also alleged bad faith and negligence on the part of Sooner Claims, alleging that Sooner: 1) assigned an adjuster to Trinity's claim when it knew or should have known that the adjuster was inadequately skilled for adjusting Trinity's type of commercial loss; 2) allowed its adjuster to drag out adjustment for over one year; 3) allowed its adjuster to "low ball" Trinity's loss on more than one occasion only to increase the covered loss when Trinity objected and hired third-parties; and 4) allowed its adjuster to engage in inadequate and incomplete adjustment of Trinity's loss, to Trinity's detriment. ¶6 After discovery and other proceedings in the trial court, Sooner filed two motions for summary judgment. In its First Motion for Summary Judgment, filed on January 14, 2014, Sooner argued that it was entitled to judgment as a matter of law because it owed no duty to Trinity that would subject it to liability for bad faith or negligent adjustment of Trinity's claim. Sooner also filed a Motion for Partial Summary Judgment on the Issue of Damages on January 21, 2014, arguing: 1) as a corporation, Trinity could not maintain a claim for emotional damages; and 2) Trinity could not establish any damages suffered as a result of any act or omission of Sooner or its adjuster Steve Hall. ¶7 The trial court entered summary judgment for Sooner on August 4, 2014. The trial court: 1) sustained Sooner's First Motion for Summary Judgment to the extent Trinity was attempting to maintain a claim against Sooner for bad faith; 2) denied Sooners First Motion for Summary Judgmet with respect to Trinity's claim of gross negligence; 3) Sustained Sooner's Motion for Partial Summary Judgment on the Issue of Damages; and 4) dismissed all claims asserted by Trinity against Sooner with prejudice. ¶8 Trinity filed its Petition in Error on July 25, 2014.3 Sooner filed a Counter-Petition in Error on August 14, 2014, to address the trial court's denial of its First Motion for Summary Judgment with respect to Trinity's claim of gross negligence. Trinity filed a motion to retain its appeal for disposition by this Court on July 25, 2014. We granted Trinity's motion to retain on August 15, 2014, and the cause as assigned to this office on August 19, 2014. II. Standard of Review ¶9 A moving party is entitled to summary judgment as a matter of law only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Miller v. David Grace, Inc., 2009 OK 49, ¶10, 212 P.3d 1223; Wathor v. Mutual Assurance Administrators, 2004 OK 2, ¶4, 87 P.3d 559. In reviewing the grant or denial of summary judgment, this Court views all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the nonmoving party. Miller, 2009 OK 49, ¶10; Wathor, 2004 OK 2, ¶4. Because a grant of summary judgment is purely a legal issue, this Court's standard of review on appeal is de novo. Miller, 2009 OK 49, ¶10; Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. III. Sooner did not Owe Trinity a Duty of Good Faith and Fair Dealing Because it was a Stranger to the Insurance Contract and no Special Relationship ExistedBetween it and Trinity. ¶10 The trial court sustained in part and denied in part Sooner's First Motion for Summary Judgment alleging that Sooner owed no legal duty to Trinity. The trial court sustained Sooner's motion to the extent that Trinity was attempting to maintain a claim against Sooner for bad faith. On appeal, Trinity contends the trial court erred because under certain circumstances an independent adjuster may owe a duty of good faith and fair dealing to individuals insured by its client. Sooner asserts it owed no duty of good faith and fair dealing to Trinity. We agree. A. The general rule in Oklahoma is that only the insurer owes a duty of good faith and fair dealing to its insured. ¶11 Oklahoma law recognizes an implied duty on the part of an insurer to deal fairly and act in good with regard to its insured. Timmons v. Royal Globe Ins. Co., 1982 OK 97, ¶12, 653 P.2d 907; Christian v. American Home Assur. Co., 1977 OK 141, ¶25, 577 P.2d 899. In Timmons, this Court examined whether this duty might be extended to cover individuals who were not a party to the contract between the insurer and the insured, and determined that it could not. 1982 OK 97, ¶¶16-17. Citing precedent from California on which this Court's recognition of the implied covenant of good faith and fair dealing was originally based, this Court in Timmons determined that as non-insurer defendants were not parties to the agreement for insurance, they could not be subject to an implied duty of good faith and fair dealing: In Christian, supra, this Court analyzed and quoted at length from Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032 (1973). Therein this Court termed Gruenberg, supra, to be a "clear analysis" of the implied duty of fair dealing and good faith at p. 904. Gruenberg, supra, itself specifically examined the liability of an agent for damages for violation of the implied covenant of fair dealing and good faith inuring in a contract of insurance: "Obviously, the non insurer defendants were not parties to the agreement for insurance; therefore, they are not, as such, subject to an implied duty of good faith and fair dealing...." Later the California Court dealt with this precise issue, Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 620 P.2d 141, 169 Cal. Rptr. 691 (1979), holding at 620 P.2d p. 149, 169 Cal.Rptr. p. 699: "Segal and McEachen acted as Mutual's agents. As such they are not parties to the insurance contract and not subject to the implied covenant. Because the only ground for imposing liability on either Segal or McEachen is breach of that promise, the judgments against them as individuals cannot stand." As this jurisdiction has embraced the implied covenant spoken to in Gruenberg, supra, it is clear that the cause will not lie against a stranger to the contract. Timmons, 1982 OK 97, ¶17 (emphasis added). B. An exception to the general rule exists when a non-party to the insurance contract acts sufficiently like an insurer so that a special relationship can be said to exist between the third-party and the insured. ¶12 While the general rule is that the implied covenant of good faith and fair dealing will not lie against third parties who are strangers to the insurance contract, there are exceptions to the rule. See Badillo v. Mid Century Ins. Co., 2005 OK 48, 121 P.3d 1080; Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 87 P.3d 559; Wolf v. Prudential Ins. Co. of America, 50 F.3d 793 (10th Cir. 1995). In Wolf v. Prudential Ins. Co. of America, the United States Court of Appeals for the Tenth Circuit determined that Timmons should not be dispositive in situations involving third party entities, such as a plan administrator, with far more involvement in the insurance process than the agent of the insurer in Timmons. Wolf, 50 F.3d at 797. Rather, the Tenth Circuit determined that lack of contractual privity alone was not a total bar, and "the analysis should focus more on the factual question of whether the administrator acts like an insurer such that there is a 'special relationship' between the administrator and insured that could give rise to a duty of good faith." Wolf, 50 F.3d at 797. ¶13 The Wolf court noted that the plan administrator in that cause had a high degree of involvement with the insured and control over matters covered by the insurance contract. 50 F.3d at 797-98. Specifically, the administrator: 1) investigated and serviced claims; 2) had primary control over benefit determinations (including intermediate appeals); 3) received a percentage of the premiums paid for participant coverage, which increased as losses decreased; and 4) assumed much of the risk for its determinations. Wolf, 50 F.3d at 798. The court concluded the administrator looks much like an insurer…. We therefore do not see Prudential as a "stranger" to the insurance contracts in this case. It was contractually obligated to administer the plans, and its contractual obligation directly benefitted plaintiffs as third-party beneficiaries of its agreements with the Annuity Board. The contractual obligation combines with the fact that Prudential's benefit determinations could at least indirectly affect its profits and losses to create a special relationship between Prudential and plaintiffs. In other words, on the facts as presented by plaintiffs, Prudential had the power, motive and opportunity to act unscrupulously. Wolf, 50 F.3d at 798. ¶14 This Court considered the Wolf decision in Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 87 P.3d 559. This Court agreed with the basic premise of Wolf and noted that the imposition of a nondelegable duty on the insurer does not necessarily preclude an action by an insured against a plan administrator for breach of an insurer's duty of good faith. Wathor, 2004 OK 2, ¶9. This Court determined: In a situation where a plan administrator performs many of the tasks of an insurance company, has a compensation package that is contingent on the approval or denial of claims, and bears some of the financial risk of loss for the claims, the administrator has a duty of good faith and fair dealing to the insured. Wathor, 2004 OK 2, ¶12. However, applying the rule of Wolf to the specific facts of Wathor, we determined that the third-party administrator in Wathor was not so entangled with the insured so as to create a special relationship that would subject them to the duty of good faith and fair dealing. Wathor, 2004 OK 2, ¶13. Specifically, this Court determined: [l]ike the plan administrator in Wolf, MAA unquestionably performed some of the tasks of an insurance company in its claims handling process. However, in contrast to the facts in Wolf, MAA's compensation package was not tied to the approval or denial of claims but was instead a flat fee based on the number of participants in the Plan. Likewise, MAA did not share the risk of loss with the Plan if losses increased to a certain level, and did not underwrite the entire risk if losses got even higher. In other words, under the facts presented in this case, MAA had neither the power, the motive, nor the opportunity to act unscrupulously. Wathor, 2004 OK 2, ¶13. ¶15 In Badillo v. Mid Century Insurance Co., 2005 OK 48, 121 P.3d 1080, this Court reached the opposite conclusion and determined that a third party did owe the insured a duty of good faith and fair dealing. That cause involved two affiliated companies under the umbrella of the Farmers Insurance Group that were so similar as to be nearly indistinguishable, though they nominally had separate functions. See Badillo, 2005 OK 48, ¶¶5, 53-55. The trial court treated the two entities as one for purposes of liability and ruled as a matter of law that they both owed the insured a duty of good faith and fair dealing. Badillo, 2005 OK 48, ¶54. This Court determined the trial court committed no error by treating the entities as indistinguishable for purposes of the implied duty of good faith and fair dealing, noting: [w]e believe no reasonable person viewing the evidence, and the reasonable inferences therefrom, could conclude anything other than FIE acted as if it was the insurer in its handling of the Smith claim and that it had a special relationship with insured such that it, like MCIC, was subject to the duty of good faith and fair dealing toward him. Badillo, 2005 OK 48, ¶55.4 C. Sooner did not owe Trinity a duty of good faith and fair dealing as a third-party insurance adjuster because it did not act sufficiently like an insurer so as to create a special relationship with Trinity. ¶16 Wolf, Wathor, and Badillo all stand for the proposition that this Court will only apply the duty of good faith and fair dealing to a third party stranger to the insurance contract when the third party acts so like an insurer that it develops a special relationship with the insured, Badillo, 2005 OK 48, ¶5, essentially giving the third party the power, motive, and opportunity to act unscrupulously. Wathor, 2004 OK 2, ¶13. ¶17 In its response to Sooner's motion for summary judgment, Trinity argued that such a special relationship did exist, because it alleged Sooner was asked to do more by Brotherhood than some insurers require from their independent adjusters, including giving advice to Brotherhood on coverage determinations recommending the setting of reserves.5 However, as this Court stated in Wathor, merely performing some of the tasks of an insurance company in the claims handling process is not sufficient to subject a third party to the duty of good faith and fair dealing.6 Sooner was not a plan administrator with primary control over benefit determinations and intermediate appeals. See Wathor, 2004 OK 2, ¶10; Wolf , 50 F.3d at 797-98. Sooner's compensation was not tied to premiums paid, nor did it increase or decrease in relation to losses, and Sooner did not share the risk with Brotherhood. See Wathor, 2004 OK 2, ¶10. ¶18 Trinity confuses the nature of the "special relationship" standard elucidated in this Court's prior cases. For a non-party to the insurance contract to be subjected to the duty of good faith and fair dealing, a special relationship must arise between it and the insured. While Trinity alleges that Sooner may have gone beyond the terms of its Limited Assignment, it is evident from the record that Sooner did not step into Brotherhood's shoes for purposes of interacting with Trinity such that it developed a special relationship with Trinity on par with that shared by parties to an insurance contract. ¶19 Sooner's authority with regard to Trinity was limited, and the facts of this case are distinguishable from situations involving administrators where the line dividing who is a third party and who is the insurer has blurred. All of Trinity's allegations and the available record indicate that the scope of Sooner's responsibilities may have been enlarged with respect to what Brotherhood asked Sooner to do for it, not with regard to Sooner's relationship with Trinity. Reviewing all inferences and conclusions to be drawn from the underlying and uncontested facts in a light most favorable to Trinity, Sooner was entitled to summary judgment as a matter of law on the grounds that it owed no duty of good faith and fair dealing to Trinity. IV. Sooner Owed No Duty to Trinity Concerning its Adjustment of Trinity's Claim ¶20 The trial court denied Sooner's First Motion for Summary Judgment with respect to Trinity's claim of gross negligence against Sooner. In its Counter-Petition in Error, Sooner asserts the trial court erred by denying in part its First Motion for Summary Judgment and asserts it owed no duty to Trinity that would subject it to a claim of gross negligence for the manner in which it investigated and adjusted Trinity's claim. Whether an insured party can maintain a separate tort action for negligence against an independent insurance adjuster employed by the insurer is an issue of first impression for this Court. ¶21 The threshold question in any action for negligence is the existence of a duty. Wood v. Mercedez-Benz of Oklahoma City, 2014 OK 68, ¶7, --- P.3d ---; Miller v. David Grace, Inc., 2009 OK 49, ¶11, 212 P.3d 1223; Bray v. St. John Health Sys., Inc., 2008 OK 51, ¶6, 187 P.3d 721. The existence of a legal duty is a question of law for the court. Wood, 2014 OK 68, ¶7; Miller, 2009 OK 49, ¶11. Where the defendant did not owe a duty of care to the plaintiff, there can be no liability for negligence as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶12, 160 P.3d 959; First Nat'l Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶20, 54 P.3d 100. ¶22 A legal duty is an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Iglehart v. Bd. of County Com'rs of Rogers County, 2002 OK 76, n. 17, 60 P.3d 497. While the question of duty is usually presented in terms of a particular actor's obligation, this Court has previously noted that the essential question is whether the plaintiff's interests are entitled to protection against the defendant's conduct. Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., 2010 OK 9; Wofford v. Eastern State Hosp., 1990 OK 77, ¶10, 795 P.2d 516. The foreseeability of harm to the potential plaintiffs as a result of an individual's conduct is one of the most important considerations used to determine the existence of a legal duty. Morales, 2010 OK 9, ¶21; Iglehart, 2002 OK 76, ¶10. However, foreseeability is just one of many factors that this Court considers and other factors include: 1) the degree of certainty of harm to the plaintiff; 2) the moral blame attached to defendant's conduct; 3) the need to prevent future harm; 4) the extent of the burden to the defendant and consequences to the community of imposing the duty on defendant; and 5) availability of insurance for the risk involved. Morales, 2010 OK 9, n. 32; Lowery, 2007 OK 38, n. 4. ¶23 A majority of courts in other states have held that an insured cannot maintain a separate tort action for negligence against an independent insurance adjuster hired by the insurer because the independent adjuster owes the insured no duty of care.7 A minority of state courts take the opposite position and have determined that in similar factual circumstances an independent adjuster does owe a duty of care to the insured to not be negligent in its investigation or adjustment of the claim.8 A. In Brown v. State Farm and Casualty Company, 2002 OK CIV APP 107, 58 P.3d 217, the Court of Civil Appeals adopted the minority view that an independent insurance adjuster hired by an insurer may owe a duty of care to the insured. ¶24 Trinity encourages this Court to adopt the minority viewpoint that an independent insurance adjuster hired by the insurer may owe a duty of care to the insured, and relies heavily upon a decision by the Oklahoma Court of Civil Appeals, Division III: Brown v. State Farm and Casualty Company, 2002 OK CIV APP 107, 58 P.3d 217 (cert. denied Oct. 15, 2002).9 In that cause, the Court of Civil Appeals adopted the view of a minority of courts in other states that independent insurance investigators owe a duty to the insured as well as the insurer to conduct a fair and reasonable investigation of an insurance claim. Brown, 2002 OK CIV APP 107, ¶19. ¶25 The court in Brown examined prior decisions of this Court addressing the existence of a duty in negligence actions: ¶ 7 "Oklahoma courts have recognized that the existence of a duty depends on the relationship between the parties and the general risks involved in the common undertaking." Wofford, ¶ 10, 795 P.2d at 519. "Duty of care is not a concept that arises only by statute.... Whenever a person is placed in such a position with regard to another that it is obvious that if he did not use due care in his own conduct he will cause injury to the other, the duty at once arises to exercise care commensurate with the situation in order to avoid such injury." Id.,citing Union Bank of Tucson v. Griffin, 1989 OK 47, ¶ 13;771;P.2d;219;222. ¶ 8 The most important consideration in establishing duty is foreseeability. Wofford, ¶ 11, 795 P.2d at 519. "As a general rule, 'a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.' " Id., citing Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 131 Cal. Rptr. 14, 22;551;P.2d;334;342 (1976). "Foreseeability as an element of duty establishes a 'zone of risk', that is, whether the conduct 'creates a generalized and foreseeable risk of harming others.' " Smith v. Speligene, 1999 OK CIV APP 95, ¶ 11;990;P.2d;312;315, citing Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 8;913;P.2d;1318;1321 and McCain v. Florida Power Corp., 593 So. 2d 500, 503. 2002 OK CIV APP 107, ¶¶7-8. The Brown court also discussed several prior decisions of this Court examining what duty was owed, if any, by professionals to third parties in a variety of factual settings that are distinguishable from the instant cause.10 Particularly persuasive to the Brown court was the decision of the New Hampshire Supreme Court in Morvay v. Hanover Ins. Companies, 127 N.H. 723, 506 A.2d 333 (1986).11 B. The law in Oklahoma is in accord with the majority view that an independent insurance adjuster hired by an insurer does not owe a duty of care to the insured. ¶26 Sooner encourages this Court to adopt the view endorsed by the majority of other states that have considered the issue, as well as by some federal district courts in Oklahoma.12 In the unreported case Wallace v. Allstate Ins. Co., No. CIV-12-0310-HE, 2012 WL 2060664 (W.D. Okla. June 7, 2012), the United States District Court for the Western District of Oklahoma determined that under Oklahoma law an independent insurance adjuster hired by an insurer to investigate a claim does not owe a duty to the insured to conduct a fair and reasonable investigation. ¶27 The court in Wallace noted that the decision of this Court relied upon in Brown concerned an architect, bond counsel, and accounting firm, all of whom were highly skilled professionals who could reasonably expect third parties to rely upon their work. Wallace, 2012 WL 2060664, *1. The Wallace court correctly noted that different circumstances apply where insurance adjusters are concerned, stating: [i]n the context of an insurance claim, it is "[t]he insurer [that] contractually controls the responsibilities of its adjuster and retains the ultimate power to deny coverage or pay a claim. Subjecting adjusters to potential tort liability from insureds could create conflicting loyalties with respect to the adjusters' contractual obligations, given that insureds and insurers often disagree on the extent of coverage or the amount of damages."Vt.2005 (internal citation omitted). Wallace, 2012 WL 2060664, *2. Put more succinctly , "'[c]reating a separate duty from the adjuster to the insured would thrust the adjuster into what could be an irreconcilable conflict between such duty and the adjuster's contractual duty to follow the instructions of its client, the insurer.'" Wallace, 2012 WL 2060664, *2 (quoting Meineke v. GAB Business Servs., Inc., 991 P.2d 267, 271 (Az. Ct. App. 1999)). ¶28 While the decisions of this Court relied upon by the Court of Civil Appeals in Brown correctly indicate that this Court does not consider lack of contractual privity a bar to the existence of a legal duty for purposes of negligence, the Wallace court is correct that public policy and other factors besides foreseeability counsel against imposing a legal duty to the insured with regards to negligence.13 ¶29 The relationship between and insurer and its insured is defined and governed by the insurance policy and its accompanying implied covenant of good faith and fair dealing. Hamill v. Pawtucket Mut. Ins. Co., 2005 VT 133, ¶13, 892 A.2d 226. See Wathor, 2004 OK 2,¶¶6-7; Christian, 1977 OK 141, ¶24-25. This court stated pointedly in Wathor that this duty is non-delegable and that an insurer can be held liable for breach of the duty due to the actions of its independent contractors or agents. 2004 OK 2, n. 6. The Court stated: [a]n insurer has a non-delegable duty of good faith while performing the functions of claims management, adjustment and settlement. This duty requires the insurer to take positive steps to adequately investigate, evaluate, and respond to its insureds' claims. An insurer may employ an agent or an independent contractor to perform these functions, but this does not absolve the insurer of its own non-delegable duty. If the agent or independent contractor fails to adequately perform the functions, the insurer is liable, not under the doctrine of respondeat superior, but because of its own failure to comply with its non-delegable duty of good faith. Wathor, 2004 OK 2, n. 6. See also Timmons, 1982 OK 97, ¶17 (acts of agents may be material to a determination of the existence of a breach of an insurer's duty of good faith and fair dealing). ¶30 Even if harm to the insured through an adjuster's negligence might be foreseeable to the adjuster, from a policy standpoint it makes little sense to hold that the adjuster has an independent duty when the insurer itself is subject to liability for the adjuster's mishandling of claims in actions alleging breach of contract and bad faith. The special relationship between the insurer and insured, and the implied duty of good faith and fair dealing on the part of the insurer, represent a unique factual departure from the decisions of this Court relied upon by the Court of Civil Appeals in Brown, discussed above.14 If the insurer mishandles a claim due to the actions of its independent adjuster, the insured may be entitled to recover compensatory damages for breach of contract, or damages in tort if the insurer's actions rise to the level of bad faith. ¶31 The existence of a separate legal duty on the part of the adjuster in these circumstances would allow for potential double recovery, permitting the insured to recover in tort both for breach of contract or breach of the duty of good faith and fair dealing by the insurer--caused by an adjusters negligent conduct--and from the adjuster for the same conduct. In the words of the Supreme Court of Vermont in Hamill: "in most cases, imposing tort liability on independent adjusters would create a redundancy unjustified by the inevitable costs that eventually would be passed on to insureds." 2005 VT 133, ¶14 (citing Sanchez v. Lindsey Morden Claims Services, Inc., 84 Cal. Rptr. 2d 799, 802-03 (Cal. Ct. App. 1999)).15 V. DAMAGES ¶32 The trial court sustained Sooner's Motion for Partial Summary Judgment on the Issue of Damages. In its motion, Sooner argued that it was entitled to judgment as a matter of law because: 1) a corporation cannot maintain a claim for emotional damages; and 2) Trinity could not establish any damages as a result of an act or omission of Sooner or its adjuster Steve Hall. As this Court has determined that Sooner owed no legal duty to Trinity that would subject it to liability in tort, either for bad faith or negligence, Sooner is entitled to judgment as a matter of law and this Court need not address the issue of damages. See Lowrey, 2007 OK 38, ¶12, 160 P.3d 959 ("The existence of a duty of care is the threshold question in any negligence action."); Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶25, 121 P.3d 1080 (noting the prima facie case for breach of the duty of good faith and fair dealing requires plaintiff establish the defendant owed them such a duty). CONCLUSION ¶33 When possible an appellate court must hand down the judgment, which in its opinion, the trial court should have rendered. Hall v. CEO Group, Inc., 2014 OK 22, ¶17, 324 P.3d 399; Dixon v. Bhuiyan, 2000 OK 56, ¶9, 10 P.3d 888. If the trial court reached the correct result but for the wrong reasons, its judgment is not subject to reversal. Hall, 2014 OK 22, ¶17; Dixon, 2000 OK 56, ¶9; In the Matter of the Estate of Bartlett, 1984 OK 9, ¶4, 680 P.2d 369. Rather, this Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale. Hall, 2014 OK 22, ¶17; Dixon, 2000 OK 56, ¶9; McMinn v. City of Oklahoma City, 1997 OK 154, ¶11, 952 P.2d 517. ¶34 The trial court did not err by entering summary judgment in favor of Sooner, though it did so on the basis of Sooner's damages claims rather than Sooner's assertion that it owed Trinity no legal duty. This Court determines that: 1) Sooner was not subject to the implied covenant of good faith and fair dealing arising from the insurance contract between Trinity and Brotherhood; and 2) owed Trinity no legal duty that would allow Trinity to recover in tort for any negligence in Sooner's investigation and adjustment of the claim. Accordingly, the trial court's August 4, 2014, grant of summary judgment in favor of Sooner is affirmed. JUDGMENT OF THE TRIAL COURT IS AFFIRMED. CAUSE DISMISSED. REIF, V.C.J., KAUGER, WATT, WINCHESTER, and COMBS, JJ., concur. TAYLOR, J., concurs in result. COLBERT, C.J., and EDMONDSON, J., concur in part and dissent in part. GURICH, J., not participating. FOOTNOTES 1 Trinity also named Brotherhood Mutual Insurance Services, LLC as a defendant, before dismissing it without prejudice early on in proceedings at the trial court level. Regardless, neither Brotherhood Mutual entity is a party to this appeal, and "Brotherhood" is used for convenience to refer to Trinity's insurer. 2 This argument appears flawed, given that the express terms of the Limited Assignment indicate Sooner was not supposed to make coverage determinations to the insured. If a loss was possibly not covered, Sooner was in fact obligated under the express terms of the assignment to provide a descriptive report to Brotherhood so it could make a coverage determination. The deposition taken from Steven Hall clearly indicates he gave his opinion to Brotherhood, Sooner's client, when he was asked for it. 3 On August 1, 2014, this Court ordered Trinity to file an amended petition in error, with the trial court's order granting summary judgment attached as Exhibit A. Trinity filed its Amended Petition in Error on August 8, 2014. 4 The Court in Badillo also noted that whether the duty of good faith and fair dealing is applicable to a non-party to the insurance contract need not always be a question of fact for a jury to decide: [w]here only one inference can reasonably be drawn from the evidence as to a material issue relating to a party's claim or defense, it is not error for a trial court to remove said issue from the jury's consideration and to direct a verdict thereon. See Agee v. Gant, 1966 OK 31, 412 P.2d 155, 156 (Third Syllabus by the Court)(question of negligence or no negligence is one of law for court where but one inference can reasonably be drawn from the evidence as to said issue). Nor is the question of whether an entity other than the named insurer on the applicable insurance policy may or may not be subject to the duty of good faith and fair dealing toward an insured always a question of fact for jury consideration. See Wathor (affirming summary judgment in favor of third-party administrator for a self-funded county health insurance program based on determination the undisputed facts presented entitled said administrator to judgment as a matter of law, as it could not be deemed to have sufficiently acted like an insurer to fasten a special relationship between it and the insured that would give rise to a duty of good faith and fair dealing on the part of the administrator toward the insured). 2005 OK 48, ¶55 (emphasis added). 5 Trinity also alleged general collusion between Brotherhood and Sooner to manipulate estimates and bring down the cost of repairs, but these allegations are essentially a restatement of Trinity's claims that Sooner acted in bad faith, rather than effective indications that Sooner acted sufficiently like an insurer to create a special relationship with Trinity. 6 This Court stated in Wathor: Like the plan administrator in Wolf, MAA unquestionably performed some of the tasks of an insurance company in its claims handling process. However, in contrast to the facts in Wolf, MAA's compensation package was not tied to the approval or denial of claims but was instead a flat fee based on the number of participants in the Plan. Likewise, MAA did not share the risk of loss with the Plan if losses increased to a certain level, and did not underwrite the entire risk if losses got even higher. In other words, under the facts presented in this case, MAA had neither the power, the motive, nor the opportunity to act unscrupulously. 2004 OK 2, ¶13 (emphasis added). 7 See, e.g., Akpan v. Farmers Ins. Exchange, Inc., 961 So. 2d 865 (Ala. Civ. App. 2007) (determining independent adjuster hired by insurer owed no duty to insureds and could not be held liable on negligence theory); Hamill v. Pawtucket Mut. Ins. Co., 2005 VT 133, 892 A.2d 226 (holding indepenant adjusters owed no duty to insured and were not liable for negligent handling of insurance claim); Charleston Dry Cleaners & Laundry, Inc. v. Zurich American Ins. Co., 355 S.C. 614, 586 S.E.2d 586 (S.C. 2003) (independent insurance adjuster owes to insured no general duty of care); Meineke v. GAB Business Services, Inc. 195 Ariz. 564, 991 P.2d 267 (Ariz. Ct. App. 2000) (determining relationship between adjuster and insured is sufficiently attenuated by the insurer's control over the adjuster that adjuster owes no legal duty to insureds and is not subject to negligence liability); Sanchez v. Lindsey Morden Claims Services, Inc., 72 Cal. App. 4th 249, 84 Cal. Rptr. 2d 799 (Cal. Ct. App. 1999) (holding that policy concerns as well as the general law of agency militate against imposing a duty of care owed by insurer-retained adjusters to insureds); Dear v. Scottsdale Ins. Co., 947 S.W.2d 908 (Tex. App. 1997) (holding that insured may not maintain negligence action against adjuster because adjuster's duties are contractual ones owed solely to insurer) (disapproved on other grounds by Apex Towing Co. v. Tolin, 41 S.W.3d 118 (Tex. 2001)); King v. Nat'l Security Fire and Casualty Co., 656 So. 2d 1338 (Fla. Dist. Ct. App. 1995) (holding that insured may not bring simple negligence action against independent insurance adjuster because adjuster's duty arises out of the underlying contract between adjuster and insurer and is owed to insurer only). 8 See, e.g., Morvay v. Hanover Ins. Co., 127 N.H. 723, 506 A.2d 333 (N.H. 1986) (independent agents hired by insurer owed a duty to both insurer and insured to conduct a fair and reasonable investigation); Continental Ins. Co. v. Bayless and Roberts, Inc., 608 P.2d 281 (Alaska 1980) (holding insurance adjuster could be liable in negligence directly to insured for failure to adequately investigate wrongful death claim). 9 Opinions released for publication by order of the Court of Civil Appeals, are persuasive only, and lack precedential effect. Hollaway v. UNUM Life Ins. Co. of America, 2003 OK 90, n. 6, 89 P.3d 1022. 10Cases discussed by the Court of Civil Appeals included: Keel v. Titan Const. Corp, 1981 OK 148, 639 P.2d 148; Bradford Securities Processing Services, Inc. v. Plaza Bank and Trust, 1982 OK 96, 653 P.2d 188; Stroud v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 783. 11 Morvay, like the instant cause and the cause before the Court of Civil Appeals in Brown, concerned what duty, if any, was owed by an independent insurance investigator to an insured who was not party to its contract with the insurer. 127 N.H. at 725-726. The Morvay court first noted that investigators are under a general duty to use due care in the performance of their work. 127 N.H. at 725. The court then determined that it was foreseeable that negligence on the part of the investigator might harm the insured: In this case, Verity and Roberts were not in privity with the plaintiffs. However, they were fully aware that the plaintiffs could be harmed financially if they performed their investigation in a negligent manner and rendered a report to Hanover that would cause the company to refuse payment to the plaintiffs. Verity and Roberts were also aware that there was a mutual duty of fair dealing between Hanover and the plaintiffs. Under these circumstances, we hold that the plaintiffs have stated a cause of action in negligence against Verity and Roberts. See Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980). Although the contractual relationship exists solely between the insurer and the investigators, and the investigators may give reports only to the insurer, the insured is a foreseeably affected third party. If the investigators' report indicates a fire of incendiary nature, the insured's contract with the insurer may be unenforceable. If, on the other hand, the report indicates that the fire is not of an incendiary nature, the insured may expect the contract to be honored. Both the insured and the insurer have a stake in the outcome of the investigation. Thus, we hold that the investigators owe a duty to the insured as well as to the insurer to conduct a fair and reasonable investigation of an insurance claim and that the motion to dismiss should not have been granted. Morvay, 127 N.H. at 726. 12 Federal court decisions are not binding or controlling upon this Court when construing Oklahoma law. Johnson v. Ford Motor Co., 2002 OK 24, ¶26, 45 P.3d 86. 13 The court in Wallace repeatedly refers to "simple negligence", noting that it makes little sense to hold an adjuster liable for simple negligence when a greater magnitude of culpability is necessary to hold the insurer itself liable for violation of the duty of good faith and fair dealing. The reason for the Wallace court's distinction is this Court's language in Badillo, where we stated: To the extent American Fidelity & Casualty Co. v. L.C. Jones Trucking Co., 321 P.2d at 687, may have implied that a simple negligence standard was approved or adopted as to the level of culpability necessary to be shown for liability to attach to an insurer for breach of the duty of good faith and fair dealing in relation to the handling of a third-party claim made against the insured, i.e., the situation involved here, that case is expressly overruled, but only to such extent. In our view, under Christian and later cases, the minimum level of culpability necessary for liability against an insurer to attach is more than simple negligence, but less than the reckless conduct necessary to sanction a punitive damage award against said insurer. In PART VII, infra, we discuss the minimum level of culpability necessary to warrant a punitive damage recovery against an insurer for breach of the duty of good faith and fair dealing. 2005 OK 48, ¶28. Any intense focus on the degree of negligence (Trinity alleges gross negligence, the Wallace court refers to "simple negligence") is misplaced. Whereas the existence of a legal duty is a question of law, the degree of negligence, which can be considered the magnitude of the breach of that duty, is a question of fact and a separate issue from whether a legal duty existed in the first place. See Fox v. Oklahoma Memorial Hosp., 1989 OK 38, ¶7, 774 P.2d 459; NMP Corp. v. Parametric Technology Corp., 958 F.Supp 1536, 1546 (N.D. Okla. 1997) ("gross negligence requires the intentional failure to perform a manifest duty in reckless disregard of the consequences or in callous indifference to the life, liberty, or property of another… Thus, gross negligence is the same as a negligence claim, differing only as to the degree."); 25 O.S. 2011 § 6 (degrees of negligence defined). At issue on appeal in this cause is whether Sooner, as an independent insurance adjuster, owed a legal duty to Trinity, the insured, not the magnitude of their potential breach of such a duty. 14 These also include, in addition to those cases already discussed, Lockheart v. Loosen, 1997 OK 103, 943 P.2d 1074 and Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, both cases that deal with foreseeability of harm and a legal duty to third parties but without the special circumstances of the insurance contract and unique relationships between an insured, insurer, and an insurer's independent adjuster. Lockhart involved a wife's lawsuit against her husband's lover after the wife contracted genital herpes. 1997 OK 103, ¶2. Brigance involved a parent's negligence suit against a vendor of alcoholic beverages for serving an intoxicated driver who killed the parent's minor child. 1986 OK 41, ¶0. 15 Much like the plaintiff in Hamill, Trinity has already settled its claims against Brotherhood, and there is no indication the settlement is somehow inadequate to cover its losses. See Hamill, 2005 VT 133, n.2.

9c44aec2-01db-42b3-85ff-fdf278217c36

American Airlines, Inc. v. Oklahoma Tax Commission

oklahoma

Oklahoma Supreme Court

AMERICAN AIRLINES, INC. v. STATE ex rel. OKLAHOMA TAX COMMISSION2014 OK 95Case Number: 112489Decided: 11/18/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. AMERICAN AIRLINES, INC., Protestant/Appellant, v. STATE OF OKLAHOMA, ex rel. OKLAHOMA TAX COMMISSION, Respondent/Appellee. ON APPEAL FROM THE OKLAHOMA TAX COMMISSION ¶0 Taxpayer who operates an aircraft repair and maintenance facility requested a refund of sales tax it paid on purchases of electricity and natural gas utility services for the 2006 calendar year. The Account Maintenance and Compliance Division of the Oklahoma Tax Commission denied the request. Taxpayer timely protested the denial. The Oklahoma Tax Commission, by order, adopted the Findings, Conclusions and Recommendations of the administrative law judge finding taxpayer failed to prove the denial was incorrect. THE OKLAHOMA TAX COMMISSION'S ORDER IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Robert O. O'Bannon, Catherine L. Campbell, Fred A. Leibrock, and Chase H. Schnebel, Phillips Murrah P.C., Oklahoma City, Oklahoma, for Appellant. Douglas B. Allen and Marjorie L. Welch, Oklahoma Tax Commission, Oklahoma City, Oklahoma, for Appellee. COMBS, J. ¶1 The main issue on appeal is whether the purchase of electricity and natural gas utility services qualifies for a sales tax exemption. The Appellant, American Airlines, Inc., ("AA") was denied a refund for the sales tax it paid on its purchases of electricity and natural gas utility services during the 2006 calendar year. To address this issue we must determine whether the Oklahoma Sales Tax Code, 68 O.S. §§ 1350-1354.6, and the Streamlined Sales and Use Tax Administration Act, 68 O.S. § 1354.14 et seq. (collectively the "Code") provides for such an exemption. AA originally requested a refund of sales or use tax paid on its purchase of utility services and other items. On appeal, AA only contests the denial of its refund claim for sales tax it paid on the utility services. I. Facts and Procedural History A. The American Airlines Facility ¶2 The record reflects AA operates the world's largest private aircraft maintenance facility ("AA Facility"). The AA Facility is located at the Tulsa International Airport in Tulsa, Oklahoma. The Account Maintenance and Compliance Division ("Division") of the Appellee, the Oklahoma Tax Commission ("OTC") does not dispute that AA was a "qualified aircraft maintenance facility" during the 2006 calendar year. A "qualified aircraft maintenance facility" is currently and during the relevant periods of this case, defined as: [A] facility operated by an air common carrier at which there were employed at least two thousand (2,000) full-time-equivalent employees in the preceding year as certified by the Oklahoma Employment Security Commission and which is primarily related to the fabrication, repair, alteration, modification, refurbishing, maintenance, building or rebuilding of commercial aircraft or aircraft parts used in air common carriage. . . Title 68 O.S. 2006, § 1357 (20) (also referred to herein as the Parts Exemption). ¶3 The AA Facility is a huge facility comprising over 3 million square feet and employs over 6,000 employees. It is also the only "qualified aircraft maintenance facility" in the state. Services performed at the AA Facility include entire airframe refurbishment, engine maintenance, painting, washing, part manufacturing, testing and other critical tasks. AA asserts the facility uses significant amounts of natural gas and electricity to run the thousands of tools, lathes, ovens, steam boilers, heating tanks and innumerable other pieces of energy-consuming equipment employed in aircraft repair. ¶4 The AA Facility is composed of four main areas of operation within the airport. The Mingo Facility, the Pine Facility, the Memorial Facility and the Apache Facility collectively compose the AA Facility. The administrative law judge ("ALJ") found each of these facilities used electricity and natural gas in aircraft repair and maintenance. ¶5 The AA Facility has maintained a Federal Aviation Administration ("FAA") Repair Station Certificate since 1961. To maintain this certification, AA is required to follow FAA regulations and guidelines established by original equipment manufacturers. AA asserts these regulations require it to maintain segregated and controlled workspaces for specific repair operations, segregated storage and protection of all aircraft materials and articles undergoing repair, and suitable permanent housing (i.e., aircraft hangars). The FAA regulations also require the facility to include "[v]entilation, lighting, and control of temperature, humidity, and other climatic conditions sufficient to ensure personnel perform maintenance, preventative maintenance, or alterations to the standards required by this part."1 B. Pre-Appeal History ¶6 In February 2009, AA filed a sales or use tax refund claim with the Division. The basis of the claim was for sales or use tax allegedly remitted in error on exempt purchases of electricity and natural gas utility services, aircraft parts, repair parts, supplies and tooling, including certain cleaners, chemicals and gases, for the 2006 calendar year. ¶7 AA asserted the utility services and other items were exempt pursuant to 68 O.S. Supp. 2006, § 1357 (20) and (28). Paragraph (20) ("Parts Exemption") provided: There are hereby specifically exempted from the tax levied by the Oklahoma Sales Tax Code: . . . . 20. Sales of aircraft and aircraft parts provided such sales occur at a qualified aircraft maintenance facility. As used in this paragraph, "qualified aircraft maintenance facility" means a facility operated by an air common carrier at which there were employed at least two thousand (2,000) full-time-equivalent employees in the preceding year as certified by the Oklahoma Employment Security Commission and which is primarily related to the fabrication, repair, alteration, modification, refurbishing, maintenance, building or rebuilding of commercial aircraft or aircraft parts used in air common carriage. For purposes of this paragraph, "air common carrier" shall also include members of an affiliated group as defined by Section 1504 of the Internal Revenue Code, 26 U.S.C., Section 1504; (emphasis added). Paragraph (28) ("Services Exemption") provided: 28. Beginning July 1, 2005, sales of aircraft engine repairs, modification, and replacement parts, sales of aircraft frame repairs and modification, aircraft interior modification, and paint, and sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint; (emphasis added). ¶8 The total amount of the original refund claim was $840,880.50 of which $781,229.01 constituted utility services. On June 10, 2009, the Division allowed a refund in the amount of $3,463.56 net of remuneration and denied $837,345.22. None of the refund was for electricity and natural gas utility services. The reason given for the denial was: Purchases were included in the request for items that do not become a part of the aircraft, aircraft frame, or aircraft engine per 68 OS 1357 (20) and (28) ¶9 AA's main point of contention is that 68 O.S. Supp. 2006, § 1357 (28) (Services Exemption) does not require electricity and natural gas or aircraft parts, repair parts, supplies and tooling, to become part of the aircraft, aircraft frame, or aircraft engine. Rather, such items only need be "employed in" repair or maintenance. It was further asserted that absent these items the repair and maintenance of qualifying aircraft could not take place. The protest also requested a hearing before the OTC. ¶10 On October 14, 2011, through its response to interrogatories, AA increased the amount in controversy by $311,040.31. This increase was attributed only to electricity and natural gas utility services employed in the repair and maintenance of aircraft pursuant to 68 O.S. § 1357 (28) during the 2006 calendar year. This increased the total amount in controversy concerning utility services to $1,092,269.32. ¶11 A hearing was scheduled for May 6, 2013. In its pre-hearing brief the Division asserted two new arguments in support of the denial. The first argument was, since 2003, electricity and gas2 has become part of the definition of "tangible personal property" for purposes of the Code. Title 68 O.S. Supp. 2005, § 1352 (23).3 It asserted, sales of tangible personal property are not sales of services and therefore, as sales of tangible personal property, electricity and natural gas do not qualify for the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)). The Division also asserted if the court should find that purchases of electricity and natural gas constitute "sales of services" then AA has failed to document that all of the electricity and natural gas purchased were employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification and paint. ¶12 The Division's second new argument was that a 2012 legislative amendment ("2012 Amendment") enlarged the scope of the Parts Exemption beginning July 1, 2012, to exempt sales of machinery, tools, supplies, equipment and "related tangible personal property" and services. This amended version reads as follows: 20. Sales of aircraft and aircraft parts provided such sales occur at a qualified aircraft maintenance facility. As used in this paragraph, "qualified aircraft maintenance facility" means a facility operated by an air common carrier, including one or more component overhaul support buildings or structures in an area owned, leased or controlled by the air common carrier, at which there were employed at least two thousand (2,000) full-time-equivalent employees in the preceding year as certified by the Oklahoma Employment Security Commission and which is primarily related to the fabrication, repair, alteration, modification, refurbishing, maintenance, building or rebuilding of commercial aircraft or aircraft parts used in air common carriage. For purposes of this paragraph, "air common carrier" shall also include members of an affiliated group as defined by Section 1504 of the Internal Revenue Code, 26 U.S.C., Section 1504. Beginning July 1, 2012, sales of machinery, tools, supplies, equipment and related tangible personal property and services used or consumed in the repair, remodeling or maintenance of aircraft, aircraft engines, or aircraft component parts which occur at a qualified aircraft maintenance facility; 68 O.S. Supp. 2012, § 1357 (20), amended by 2012 Okla. Sess. Laws c. 230, § 2; the 2012 amendment language is underlined. The Division argued that AA's claim attributable to purchases of tools, supplies, cleaners and other chemicals should be denied as these items were not exempt until July 1, 2012, pursuant to the amendment. It should be noted the Division did not claim in its pre-hearing brief that the 2012 Amendment in any way affected AA's refund claim concerning electricity and natural gas or the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)). ¶13 At the May 6, 2013, hearing, AA called two witnesses to testify; Wendyl Griffin and Patricia G. Tuite. Wendyl Griffin is an AA employee and his testimony concerned the many operations performed at the AA Facility with an emphasis on the facility's use of electricity and natural gas. He testified that the AA Facility performs aircraft repairs, including aircraft frame repairs, modifications, including modification of the aircraft frame and interior, and replacement of aircraft engines and such functions use electricity and natural gas. He further testified that in 2006 AA performed work on another company's aircraft (Allegiant) which represented a nominal two percent (2.0%) of AA's work. He also testified that both the FAA and original equipment manufacturer sometimes have requirements AA must comply with including specifying temperature ranges and humidity levels and the environment workers must be in while performing specific work. ¶14 AA's next witness was Patricia G. Tuite. Ms. Tuite is AA's expert witness who conducted a predominant use study on the AA Facility. The purpose of the study was to determine whether the AA Facility was predominantly used for aircraft repair and maintenance.4 Ms. Tuite used a square footage methodology because Oklahoma had not established a methodology for conducting a predominant use study regarding the Services Exemption. She adopted this methodology from Colorado. In her opinion, a square footage analysis was a conservative and accurate methodology to determine usage of aircraft maintenance and repair. She testified that the alternative to a square footage analysis would be to conduct an equipment by equipment analysis. This would entail checking the usage of electricity and natural gas on every piece of equipment at the AA Facility. Her testimony implied that such an analysis was unfeasible. ¶15 Ms. Tuite provided testimony concerning her second and final report dated January 15, 2013. In this report, Ms. Tuite determined seventy-six and nine tenths percent (76.9%) of the electricity and ninety-nine and nine tenths percent (99.9%) of the natural gas used at the AA Facility was related to aircraft repair and maintenance activities. Therefore, under a predominant use theory, because a majority of the square footage at the AA Facility during 2006 was determined to be predominantly used in aircraft maintenance and repairs then all of the electricity and natural gas purchased at those meters was entitled to a sales tax refund. ¶16 In his Findings, Conclusions and Recommendations, filed November 6, 2013, the ALJ determined Tuite qualified as an expert witness and he admitted her reports into evidence.5 The ALJ determined an "analysis of the sales tax exemptions at issue should ultimately determine the relevance of whether [AA] needs an expert witness/expert report on 'predominant use' based upon 'square footage' or any other methodology." ¶17 The ALJ found this case presented questions of law on two sales tax exemptions for the 2006 Tax Year (68 O.S. § 1357 (20) (Parts Exemption) and (68 O.S. § 1357 (28) (Services Exemption)). He also noted AA is the only taxpayer in Oklahoma who can qualify for these exemptions. The ALJ determined the only issues left concerning electricity and natural gas utility services were whether they were exempt under the Services Exemption as "sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint," and if so, is the amount of the exemption limited. ¶18 The ALJ found it was unclear what services the Services Exemption applied to. Therefore, he determined the Services Exemption was ambiguous and should be strictly construed against the allowance of an exemption. The ALJ noted neither party specifically expressed their position on the ambiguity of the Services Exemption; however, by implication, AA's position must be that the exemption is clear and unambiguous and the Division's must be that the exemption is ambiguous. ¶19 The ALJ determined if the Services Exemption is plain and unambiguous then AA failed to address three problems. For his first contention, the ALJ presented a new argument. The ALJ asserted, AA seeks a refund of sales tax it paid to its vendors for electricity and natural gas purchases and AA did not sell electricity or natural gas to its customers. The ALJ stated: [t]he electricity and natural gas (as services) were at best 'used or consumed' in the repair of aircraft or aircraft parts for the Claimant's customer(s), not the 'sale of services employed' in the repair of aircraft or aircraft parts for the Claimant's customers. ¶20 The ALJ's second contention is that in 2003 the Legislature amended the definition of "tangible personal property" to include electricity and gas.6 He asserted that since this amendment, electricity and "natural"7 gas are by definition tangible personal property and therefore the term "services" in the Services Exemption during 2006 was not meant to include electricity and natural gas. ¶21 The ALJ's third contention concerns the 2012 Amendment to the Parts Exemption. The amendment, in pertinent part, states: Beginning July 1, 2012, sales of machinery, tools, supplies, equipment and related tangible personal property and services used or consumed in the repair, remodeling or maintenance of aircraft, aircraft engines, or aircraft component parts which occur at a qualified aircraft maintenance facility; Title 68 O.S. Supp. 2012, § 1357 (20). The ALJ asserted the Legislature will not be presumed to have intended a vain or absurd result8 and this amendment would not have been necessary if the Services Exemption already included electricity and natural gas.9 ¶22 The ALJ determined whether electricity and natural gas are defined as "tangible personal property" or as "services" they are subject to the imposition of sales tax unless specifically exempted by the Sales Tax Code. He mentioned the following three examples where electricity and natural gas were specifically exempted in 2006: 8. Sale of natural or artificial gas and electricity, and associated delivery or transmission services, when sold exclusively for residential use. . . 31. Beginning January 1, 2004, sales of electricity and associated delivery and transmission services, when sold exclusively for use by an oil and gas operator for reservoir dewatering projects and associated operations . . . . 35. Sales of electricity to the operator, specifically designated by the Oklahoma Corporation Commission, of a spacing unit or lease . . . Title 68 O.S. Supp. 2006, § 1357; (2006 Okla. Sess. Laws, 2nd Ex. Sess., c. 44, § 5, eff. July 1, 2007). ¶23 The ALJ next asserted that statutes exempting property from taxation are strictly construed against the allowance of an exemption.10 He noted, only where the intent of the Legislature cannot be ascertained from a statute's text, as occurs when ambiguity or conflict exists, may rules of statutory construction be employed.11 Legislative intent must be given effect and such intent is ascertained from a general consideration of an entire act.12 Nonetheless, courts cannot enlarge the taxing act's ambit to make its provisions applicable to cases not clearly within the Legislature's contemplation or to fill lacunae in the revenue law in a manner that would distort the enactment's plain language.13 The ALJ concluded AA failed to meet its burden of proof by preponderance of the evidence that the Division's denial of a refund for electricity and natural gas utility services was incorrect.14 Because the Findings, Conclusions and Recommendations found AA was not eligible to exempt sales tax it paid on its 2006 purchases of electricity and natural gas utility services, it did not specifically determine whether a predominant use analysis and/or square footage methodology would have been appropriate to determine the amount of a sales tax exemption. ¶24 On November 21, 2013, AA filed an Application For A Hearing En Banc with the OTC. By Order, on December 17, 2013, the OTC denied AA's application and adopted the ALJ's Findings, Conclusions and Recommendations. AA appealed the Order by filing its Petition in Error on January 16, 2014. This Court granted AA's Motion to Retain on February 25, 2014. This case was assigned to this office on June 19, 2014. II. STANDARD OF REVIEW ¶25 The parties agree this is a case of first impression. When the OTC, an administrative agency, acts in its adjudicative capacity, its orders will be affirmed on appeal if 1) the record contains substantial evidence supporting the facts upon which the order is based and 2) the order is free of legal error. Neer v. State ex rel. Oklahoma Tax Comm'n, 1999 OK 41, ¶3, 982 P.2d 1071, 1073; See Dugger v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1992 OK 105, ¶9, 834 P.2d 964, 968. The dispositive issues in this case revolve around whether the term "sales of services employed in" in the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)) encompasses electricity and natural gas utility services. To resolve these issues we must first ascertain the meaning of the phrase "sales of services employed in." We are therefore presented with a question of statutory interpretation. Statutory interpretation presents a question of law which is subject to our de novo review.15 The OTC's legal rulings are subject to an appellate court's plenary, independent and nondeferential reexamination.16 We review de novo its rulings on these dispositive issues. III. ANALYSIS A. The Contested Issues and Arguments ¶26 On appeal, AA only contests that portion of the refund denial pertaining to the 2006 sales tax it paid on electricity and natural gas utility services. AA does not contest the OTC's determination that sales tax paid on purchases of gases, like Argon and Acetylene, shop equipment, tools and chemicals were not exempt. The sole issue on appeal is whether the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)) exempts electricity and natural gas utility services. The issue of whether a predominant use theory and square footage methodology was appropriate to determine the amount of a sales tax refund is not before this Court at this time. Although that issue was presented to the ALJ, his adopted Findings, Conclusions and Recommendations did not specifically address that issue. The ALJ determined AA did not prove the refund denial was incorrect and therefore did not proceed further to determine the appropriateness of a methodology. ¶27 The 2006 Services Exemption at issue provided: There are hereby specifically exempted from the tax levied by the Oklahoma Sales Tax Code: . . . . 28. Beginning July 1, 2005, sales of aircraft engine repairs, modification, and replacement parts, sales of aircraft frame repairs and modification, aircraft interior modification, and paint, and sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint; (emphasis added). 68 O.S. Supp. 2006, § 1357 (28). The adopted Findings, Conclusions and Recommendations determined AA is the only entity in Oklahoma that qualifies for both the Parts Exemption and Services Exemption (68 O.S. Supp. 2006, § 1357 (20) and (28)). AA asserts the term "sales of services," in the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)) includes the electricity and natural gas utility services it purchased in 2006 from a utility company(s) at meters located at the AA Facility. AA's expert witness testified that such utility services were predominantly "employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint." The amount of the sales tax refund in controversy is $1,092,269.32. ¶28 The OTC's original reason for denial was "[p]urchases were included in the request for items that do not become a part of the aircraft, aircraft frame, or aircraft engine per 68 OS 1357 (20) and (28)." AA found this denial to be in error because "services" can never become part of the aircraft, aircraft frame, or aircraft engine. ¶29 Following the original denial, the gist of the OTC's main arguments are as follows: 1) the Services Exemption's language, "sales of services employed," is not defined in the Code and is ambiguous and since 2003, the Code defines electricity and gas as "tangible personal property,"17 therefore those items cannot be deemed "services" for purposes of the Code; 2) a 2012 amendment to 68 O.S. § 1357 (20) (Parts Exemption) expanded the Parts Exemption beginning July 1, 2012, to include tangible personal property and services used or consumed in aircraft repairs, if the Services Exemption had already included electricity and natural gas then this amendment would have been in vain; and 3) the Services Exemption requires AA to be the vendor of services, not the purchaser of services. B. Exemption Statutes ¶30 This appeal concerns a sales tax exemption statute (68 O.S. Supp. 2006, § 1357 (28) (Services Exemption)). Statutes exempting property from taxation are to be strictly construed against the claimant. Blitz U.S.A., Inc., v. Oklahoma Tax Comm'n, 2003 OK 50, ¶14, 75 P.3d 883, 888. Claims of exemption must be by express grant. In re Noble's Estate, 1938 OK 324, ¶7, 80 P.2d 243, 245. An exemption cannot exist by implication and a doubt is fatal to the claim of exemption. Oklahoma City v. Shields, 1908 OK 195, ¶10, 22 Okla. 265, 100 P. 559. ¶31 In Colcord v. Granzow, 1928 OK 211, ¶18, 137 Okla. 194, 278 P. 654, 660, this Court held: [t]he rule of strict construction, as applied to statutes, does not mean that words shall be so restricted as not to have their full meaning, but merely means that everything shall be excluded from the operation of the statutes so construed which does not clearly come within the meaning of the language used. The Colcord Court also found the following language from page 1076 in Volume 25 of Ruling Case Law to be persuasive: [t]he rule of strict construction comes into play only when the language, after analysis and subjection to the ordinary rules of interpretation, presents ambiguity. Colcord, 1928 OK 211 at ¶18. This Court has held that tax exemptions must be construed sensibly in order to give effect to the governing legislative scheme. Blitz U.S.A, Inc., 2003 OK 50 at ¶16. We have given language in an exemption statute a "practical construction" when the OTC's interpretation imposed a restriction not warranted by the language of the statute. Schulte Oil Co., Inc. v. Oklahoma Tax Comm'n, 1994 OK 103, ¶24, 882 P.2d 65, 74; See Dolese Bros. Co. v. State ex rel. Oklahoma Tax Comm'n, 2003 OK 4, ¶21, 64 P.3d 1093, 1101-1102. C. Legislative Scheme ¶32 The OTC, by its adoption of the ALJ's Findings, Conclusions and Recommendations, determined that AA is the only entity in the state who can benefit from the Parts Exemption and the Services Exemption. There is nothing in the record to show that any other entity has ever attempted to benefit from these exemptions. The record reflects AA is the world's largest private aircraft repairer. AA is one of Oklahoma's largest employers, employing over 6,000 persons at its facility in Tulsa, Oklahoma. The legislative scheme behind the Services Exemption was undoubtedly to provide a benefit to one of Oklahoma's largest employers. D. Rules of Statutory Construction ¶33 The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent and purpose as expressed by the statutory language. Naylor v. Petuskey, 1992 OK 88, ¶4, 834 P.2d 439, 440; Ledbetter v. Howard, 2012 OK 39, ¶12, 276 P.3d 1031, 1035. If the legislative intent cannot be ascertained from the language of a statute, as in the cases of ambiguity, we must apply rules of statutory construction. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656, 658. The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation. In Matter of J. L. M., 2005 OK 15, ¶5, 109 P.3d 336, 338. Where a statute is ambiguous or its meaning uncertain it is to be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating legislative intent. Wylie v. Chesser, 2007 OK 81, ¶19, 173 P.3d 64, 71. See Udall v. Udall, 1980 OK 99, ¶11, 613 P.3d 742, 745, ("[i]n ascertaining legislative intent, the language of the entire Act should be construed with a reasonable and sensible construction"); Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, 1988 OK 117, ¶7, 764 P.2d 172, 179, ("[s]tatutory construction that would lead to an absurdity must be avoided and a rational construction should be given to a statute if the language fairly permits."). The legislative intent will be ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. State ex rel. Dept. of Human Services v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824, 827; Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882, 886. Any doubt as to the purpose or intent of a statute may be resolved by resort to other statutes relating to the same subject matter. Naylor, 1992 OK 88 at ¶4. This Court will not limit consideration to one word or phrase but will consider the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying the intent. YDF, Inc., 2006 OK 32 at ¶6. E. Services Exemption 1. The Term "Services" in the Services Exemption Includes Electricity and Natural Gas Utility Services ¶34 All sales of tangible personal property, natural gas, and electricity are subject to sales tax unless "otherwise exempted."18 Title 68 O.S. Supp. 2006, § 1354 (A) (1) and (2) provided: A. There is hereby levied upon all sales, not otherwise exempted in the Oklahoma Sales Tax Code, an excise tax of four and one-half percent (4.5%) of the gross receipts or gross proceeds of each sale of the following: 1. Tangible personal property, except newspapers and periodicals; 2. Natural or artificial gas, electricity, ice, steam, or any other utility or public service, except water, sewage and refuse. Provided, the rate of four and one-half percent (4.5%) shall not apply to sales subject to the provisions of paragraph 6 of Section 1357 of this title; ¶35 Title 68 O.S. Supp. 2006, § 1357 (28) provided a specific exemption for "sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint." During 2006, tangible personal property was defined as follows: 23. "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is in any other manner perceptible to the senses. "Tangible personal property" includes electricity, water, gas, steam and prewritten computer software. This definition shall be applicable only for purposes of the Oklahoma Sales Tax Code; (emphasis added). Title 68 O.S. Supp. 2006, § 1352 (23). ¶36 The OTC asserts the definition of "tangible personal property" during 2006 included natural gas and electricity and the term "services" is not defined in the Code. Electricity and "gas" was added to the definition of "tangible personal property" in 200319 after § 1354 (A) (2)'s language was in effect. The OTC contends it is ambiguous whether the term "services" in the Services Exemption was meant to include electricity and natural gas. In reaching this position, the OTC resorted to other sections in the Code to determine the meaning of "services." The OTC focused on § 1352's definition of "tangible personal property." The gist of the OTC's argument is that the 2003 amendment to this definition showed the legislative intent was to exclusively refer to electricity and natural gas as "tangible personal property" in the Code notwithstanding § 1354 (A) (2)'s reference to electricity and natural gas as a utility service. Therefore, the OTC asserts, the term "services" in the Services Exemption does not include electricity and natural gas. This argument implies the Legislature inadvertently left electricity and natural gas in § 1354 (A) (2) when it amended the definition of "tangible personal property." ¶37 AA asserts the term "services" in § 1357 (28) (Services Exemption) is not ambiguous. Section 1354 (A) (2) taxes electricity and natural gas as utility services and the Services Exemption provides a specific exemption for "services employed in" aircraft maintenance and repair. AA contends the Legislature did not amend § 1354 (A) (2) when it amended the definition of "tangible personal property" because it understood electricity and natural gas can be purchased as "tangible personal property" or as a "service" from a utility company. AA asserted the sale of natural gas from the wellhead or wholesale electricity from a generation plant may be considered "tangible personal property" but it is a service when provided by a utility company. Further, AA argues there is a clear distinction between wholesale electricity and electric services in other statutes. For example, 17 O.S. § 158.22 (4) states "[t]he term 'retail electric services' means electric service furnished to a consumer for ultimate consumption, but does not include wholesale electric energy furnished by an electric supplier to another electric supplier for resale." Although this section does not pertain to the Code, AA found it presented an example of how Oklahoma law treats wholesale electricity different from electric services. ¶38 Additionally, AA asserts the OTC's own rules belie its position. OAC 710:65-19-341 (amended at 22 Ok Reg. 1561, eff. June 11, 2005) provided: (a) General provisions. Generally, the sale of utilities or public services, including natural or artificial gas and electricity are subject to sales tax. [See: 68 O.S. Supp. 1999, § 1354 (A) (2)] Even under its own rule the OTC refers to electricity and natural gas as a service. It should be noted that the above language is taken from a 2005 amendment to the rule and was the version in effect during 2006. Therefore, two years after the definition of "tangible personal property" was amended to include electricity and "gas" the OTC still referred back to § 1354 (A) (2) and its use of the term service to describe electricity and natural gas. ¶39 Next, AA argues that because only the services included in § 1354 are taxable, only those services may be exempted. AA determined that out of all the taxable services in § 1354, electricity and natural gas were the only services that are employed in the repair and maintenance of aircraft under the Services Exemption.20 Therefore, if the term "services" in the Services Exemption did not include electricity and natural gas utility services it would grant no exemption at all. ¶40 In using rules of statutory construction, we may consider other relevant provisions of law to determine legislative intent. Whether the term "services" included electricity and natural gas utility services may be uncertain by only reading the Services Exemption, however, after employing rules of statutory construction it appears clear. We find the term "services" in the Services Exemption was intended to include electricity and natural gas utility services. ¶41 The Code refers to electricity and natural gas as a service and also refers to electricity and "gas" as "tangible personal property." The OTC's rule also refers to electricity and natural gas as a service. Only services which are taxable can be exempted. Section 1354 makes provision for taxing certain services. We find the legislative intent was to use the broad term "services" to exempt any taxable service under § 1354 that was employed in aircraft repair and maintenance. The record reflects that out of all these taxable services only electricity and natural gas utility services have been used in the repair and maintenance of aircraft. If we did not find that electricity and natural gas were included in the term "services" it would mean that part of the Services Exemption provided no exemption at all and would therefore be superfluous and useless. That would not fit within the apparent legislative scheme to provide a sales tax exemption to AA. A statute must be read to render every part operative and to avoid rendering parts thereof superfluous or useless. Moran v. City of Del City, 2003 OK 57, ¶8, 77 P.3d 588, 591. Here, there is enough guidance in the Code and administrative rules to determine the Legislature and the OTC refer to electricity and natural gas as both a "service" and as "tangible personal property." We need not decide if there is any distinction between the use of the two terms because we find the pertinent term "services" encompasses electricity and natural gas utility services. 2. The 2012 Amendment to the Parts Exemption ¶42 The 2012 Amendment to the Parts Exemption (underlined) provided: 20. Sales of aircraft and aircraft parts provided such sales occur at a qualified aircraft maintenance facility. As used in this paragraph, "qualified aircraft maintenance facility" means a facility operated by an air common carrier, including one or more component overhaul support buildings or structures in an area owned, leased or controlled by the air common carrier, at which there were employed at least two thousand (2,000) full-time-equivalent employees in the preceding year as certified by the Oklahoma Employment Security Commission and which is primarily related to the fabrication, repair, alteration, modification, refurbishing, maintenance, building or rebuilding of commercial aircraft or aircraft parts used in air common carriage. For purposes of this paragraph, "air common carrier" shall also include members of an affiliated group as defined by Section 1504 of the Internal Revenue Code, 26 U.S.C., Section 1504. Beginning July 1, 2012, sales of machinery, tools, supplies, equipment and related tangible personal property and services used or consumed in the repair, remodeling or maintenance of aircraft, aircraft engines, or aircraft component parts which occur at a qualified aircraft maintenance facility; Title 68 O.S. Supp. 2012, § 1357 (20); 2012 Okla. Sess. Laws c. 230, § 2 (SB 1465 (2012)) (emphasis added). The OTC argues if the Services Exemption was intended to include electricity and natural gas utility services then there would be no reason for the Legislature to make this amendment to the Parts Exemption. The OTC asserts the Legislature will not be presumed to have intended a vain or absurd result21 and the 2012 Amendment must be given meaning. ¶43 To determine the meaning behind the Parts Exemption we look to the title of SB 1465 (2012). SB 1465 provided in pertinent part: amending 68 O.S. 2011, Section 1357, which relates to sales tax exemptions; providing exemption for sales of certain property related to aircraft repair, remodeling or maintenance . . . (emphasis added). 2012 Okla. Sess. Laws c. 230. The focus appears to be on "property" ("sales of machinery, tools, supplies, equipment and related tangible personal property . . . used or consumed in" aircraft repairs). Even though the definition of "tangible personal property" includes electricity and gas it also includes many things like the shop equipment, tools and chemicals that AA conceded were not covered in 2006. The 2012 Amendment therefore has meaning because it provides a new and prospective exemption for such items "used or consumed" in aircraft repairs that did not exist in 2006. ¶44 Based on our analysis in the previous section, the language can also be read to provide an exemption for sales tax paid on electricity and gas as either tangible personal property or as a service. However, there is a difference between the Parts Exemption and the Services Exemption. The Parts Exemption is specifically limited to a "qualified aircraft maintenance facility" whereas the Services Exemption is broader and does not have that limitation. Even though the OTC determined the Parts Exemption and Services Exemption apply only to AA, the Parts Exemption concerns a smaller class (qualified aircraft maintenance facilities). In the present case, AA qualifies for both exemptions. Our determination that the Services Exemption already exempted electricity and natural gas utility services in 2006 does not make the 2012 Amendment's exemption, which applies specifically to qualified aircraft maintenance facilities, a vain act or absurd. AA was entitled to a sales tax exemption for electricity and natural gas utility services in 2006 under the Services Exemption and, after the enactment of the 2012 Amendment, it also qualified for the same sales tax exemption as a qualified aircraft maintenance facility. Simply put, in 2012, AA would have qualified for an exemption for sales taxes paid on utility services under two different exemption provisions. 3. The Second Part of the Services Exemption Does Not Require AA to be a Vendor of "Services Employed In" Aircraft Repairs Nor Is It Limited to Only Repairs of Other's Aircraft. ¶45 The ALJ asserted it was problematic that AA was seeking a sales tax refund on sales tax it paid to its vendors (utility companies). The ALJ noted AA did not sell electricity and natural gas to its customers. He determined electricity and natural gas as services were at best "used or consumed" in the repair of aircraft or aircraft parts for AA's customers not the "sale of services employed" in the repair of aircraft or aircraft parts for AA's customers. The ALJ was creating a distinction between the following parts of the 2012 Amendment and the 2006 Services Exemption: 2012 Amendment to the Parts Exemption (68 O.S. Supp. 2012, § 1357 (20)): Beginning July 1, 2012, sales of machinery, tools, supplies, equipment and related tangible personal property and services used or consumed in the repair, remodeling or maintenance of aircraft, aircraft engines, or aircraft component parts which occur at a qualified aircraft maintenance facility; (emphasis added) 2006 Services Exemption (68 O.S. Supp. 2006, § 1357 (28)): Beginning July 1, 2005, sales of aircraft engine repairs, modification, and replacement parts, sales of aircraft frame repairs and modification, aircraft interior modification, and paint, and sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint; (emphasis added) The language "sales of . . . services used or consumed in" the repair of aircraft or aircraft parts is new to the 2012 Amendment but for all intents and purposes is identical to the language "sales of services employed in" found in the 2006 Services Exemption. ¶46 AA argues the Services Exemption has two component parts. The first part is: Beginning July 1, 2005, sales of aircraft engine repairs, modification, and replacement parts, sales of aircraft frame repairs and modification, aircraft interior modification, and paint … The second part of the Services Exemption is: Beginning July 1, 2005 . . . sales of services employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint; AA contends that the first part clearly pertains to AA as a vendor when it makes repairs to a customer's aircraft; however, the second part does not apply to AA as a vendor. AA asserts the word "employed" means to "make use of."22 It pertains to any sales of services employed (used) in those repairs. We agree. The record reflects AA paid sales tax on purchases of electricity and natural gas utility services which it employed in aircraft repairs made on its own aircraft as well as a nominal amount on Allegiant's aircraft. The second part of the Services Exemption does not require AA to be the vendor of the services employed nor does it preclude repairs to one's own aircraft. The only requirement is that those services are "employed in the repair, modification and replacement of parts of aircraft engines, aircraft frame and interior repair and modification, and paint." Therefore, we find no merit in the OTC's assertion that the second part of the Services Exemption somehow requires AA to be a vendor of the "services employed in" aircraft repairs or that it is inapplicable to repairs of AA's own aircraft. CONCLUSION ¶47 We hold in the present case as between these parties, the Services Exemption (68 O.S. Supp. 2006, § 1357 (28)) provides an exemption for electricity and natural gas utility services used by AA during 2006 in aircraft repair and maintenance activities. The remaining issue concerns the appropriate methodology for determining the amount of the sales tax refund AA should receive on its 2006 purchases of utility services. The adopted Findings, Conclusions and Recommendations did not make a specific finding concerning an appropriate methodology. We remand this matter to the Oklahoma Tax Commission for further proceedings consistent with this opinion. THE OKLAHOMA TAX COMMISSION'S ORDER IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ALL JUSTICES CONCUR. FOOTNOTES 1 14 CFR § 145.103 (a)(2)(v). 2 The definition does not specify "natural gas" it only states "gas." 3 Title 68 O.S. Supp. 2005, § 1352 (23) provided: 23. "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is in any other manner perceptible to the senses. "Tangible personal property" includes electricity, water, gas, steam and prewritten computer software. This definition shall be applicable only for purposes of the Oklahoma Sales Tax Code; Electricity and "gas" (not specifically natural gas) were added to this definition in 2003 Okla. Sess. Laws c. 413. § 1. 4 AA claims the OTC requested a predominant use study but provided no guidance on how it should be conducted. The OTC admitted it discussed a predominant use study with AA. In its pre-hearing brief the Division determined that neither statute nor rule provides for the application of a predominant use theory to qualify for the Services Exemption. It did note, however, that predominant use is referenced in the manufacturing exemption rule, Okla. Admin. Code § 710: 65-13-150.1(d) (June 25, 2000), which provides in pertinent part: (d) Predominant use. Incidental use of otherwise qualifying items or machinery predominantly used in the manufacturing operation will not result in disqualification: (1) Where an item is predominantly used in the manufacturing operation, any non-exempt use will be considered incidental, and will not disqualify the item from the exemption. (2) Where electricity or natural gas is metered through a single meter, and the predominant use is in the manufacturing operation, any remaining usage will be considered incidental, and will be exempt. (emphasis added) 5 The Division had filed a Motion in Limine on April 5, 2013, to exclude Tuite's testimony and reports. 6 The amendments to 68 O.S. Supp. 2003, § 1352 (23); 2003 Okla. Sess. Laws c. 413, § 1, eff. Nov. 1, 2003, are as follows: "Tangible personal property" means personal property which may that can be seen, weighed, measured, felt, or touched or which that is in any other manner perceptible to the senses. "Tangible personal property" includes electricity, water, gas, steam and prewritten computer software. This definition shall be applicable only for purposes of the Oklahoma Sales Tax Code; 7 See note 7 supra, the 2003 Amendment does not specifically mention "natural gas" it uses the term "gas". 8 Strelecki v. Oklahoma Tax Com'n, 1993 OK 122, 872 P.2d 910. 9 This is the first time an argument had been made tying the 2012 Amendment to an exemption on electricity and natural gas or the Services Exemption. The Division had not previously made this connection. 10 Blitz U.S.A., Inc. v. Oklahoma Tax Comm'n, 2003 OK 50, ¶14, 75 P.3d 883, 888. 11 Blitz, 2003 OK 50 at ¶14, "where a statute is plain and unambiguous, it will not be subject to judicial construction, but will be given the effect its language dictates." 12 Globe Life and Acc. Ins. Co. v. Oklahoma Tax Comm'n, 1996 OK 39, ¶10, 913 P.2d 1322, 1327. 13 Globe, 1996 OK 39 at ¶10. 14 Okla. Admin. Code § 710:1-5-47 (June 25, 1999): In all administrative proceedings, unless otherwise provided by law, the burden of proof shall be upon the protestant to show in what respect the action or proposed action of the Tax Commission is incorrect. If, upon hearing, the protestant fails to prove a prima facie case, the Administrative Law Judge may recommend that the Commission deny the protest solely upon the grounds of failure to prove sufficient facts which would entitle the protestant to the requested relief. Okla. Admin. Code § 710:1-5-77 (June 25, 1999) provides in pertinent part: (a) In order to have the assessment adjusted or abated, the taxpayer must demonstrate, by a preponderance of the evidence, that the assessment or some portion thereof is clearly erroneous. (b) For purposes of Section 221(e) of Title 68 of the Oklahoma Statutes and Part 7 of this Subchapter, "preponderance of the evidence" means the evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; evidence which as a whole shows that the fact sought to be proved is more probable than not. 15 Multiple Injury Trust Fund v. Pullum, 2001 OK 115, ¶8, 37 P.3d 899, 903-904; Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶8, 33 P.3d 302, 305; State ex. rel. Oklahoma Tax Com'n v. Texaco Exploration & Production, Inc., 2005 OK 52, ¶7, 131 P.3d 705, 707-708. 16 Blitz U.S.A., Inc. v. Oklahoma Tax Comm'n, 2003 OK 50, ¶6, 75 P.3d 883, 885. 17 Title 68 O.S. Supp. 2003, § 1352 (23). 18 Title 68 O.S. Supp. 2006, § 1354. 19 2003 Okla. Sess. Laws c. 413, § 1 (SB 708; eff. Nov. 1, 2003). 20 AA notes the other taxable services in 68 O.S. Supp. 2006, § 1354 include: transportation services (§1354 (A) (3), telecommunications services (§ 1354 (A) (4)), furnishing hotel rooms and meals (§ 1354 (A) (6) and (A) (9), parking (§1354 (A) (7), advertising (§ 1354 (A) (10), and the rental of sports equipment (§ 1354 (A) (15). 21 Strelecki v. Oklahoma Tax Comm'n, 1993 OK 122, ¶20, 872 P.2d 910, 920. 22 Oxford Dictionaries online, http://www.oxforddictionaries.com/us/definition/american_english/employ; Merriam-Webster online, http://www.merriam-webster.com/dictionary/employ. The Code does not define "employed." Title 25 O.S. § 1, provides: "Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained."

8d0cc122-d49b-4092-836f-c4ce83e35cef

Marshall County v. Homesales, Inc.

oklahoma

Oklahoma Supreme Court

MARSHALL COUNTY v. HOMESALES, INC.2014 OK 88Case Number: 111786; Consol. w/111870Decided: 10/28/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARSHALL COUNTY, OKLAHOMA, COUNTY COMMISSIONERS ex rel. MARSHALL COUNTY, OKLAHOMA, Plaintiff/Appellee,v.HOMESALES, INC., JPMORGAN CHASE BANK, N.A., and JASON L. HOWELL, Defendants/Appellants. ON APPEAL FROM AN ORDER CERTIFYING CLASS ACTION BY THEDISTRICT COURT OF MARSHALL COUNTY, HONORABLE J. WALLACE COPPEDGE, TRIAL JUDGE ¶0 Appellants Homesales, Inc. (Homesales), JPMorgan Chase Bank, N.A. (JPMorgan) (collectively Chase) and Jason L. Howell, appeal the district court's order certifying this case as a class action at the request of Appellee Marshall County, Oklahoma, County Commissioners ex rel. Marshall County, Oklahoma. This case concerns the Documentary Stamp Tax Act, and its applicability to a sheriff's deed granted to Homesales in a mortgage foreclosure action prosecuted by JPMorgan. Homesales claimed that the transaction was exempt from documentary tax. The County disagreed and sued to collect the tax it claimed was due. The County also moved to certify the case as a class action in which all Oklahoma counties would join as plaintiffs. The district court granted the County's motion and certified the case pursuant to Title 12 O.S. Supp. 2013 § 2023 (B)(3) and the defendants appealed. Because the County is precluded by our holding in Murray Cnty. v. Homesales, Inc., 2014 OK 52, 330 P.3d 519, from suing to collect unpaid taxes allegedly due pursuant to the DSTA, the district court's class certification order is reversed and this case is remanded for further proceedings. ORDER OF THE DISTRICT COURT CERTIFYING A CLASS ACTION IS REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. Clyde A. Muchmore, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Kenneth M. Kliebard, Morgan, Lewis & Bockius, LLP, Chicago, Illinois, for Defendants/Appellants Homesales, Inc., and JPMorgan Chase Bank, N.A. Brian J. Rayment, Kivell, Rayment & Francis, P.C., Tulsa, Oklahoma, for Defendant/Appellant Jason L. Howell.Darryl F. Roberts and Jason D. May, Ardmore, Oklahoma, for Plaintiff/Appellee. FISCHER, S.J.: ¶1 The issue in this litigation is whether class treatment is appropriate for damage claims by Oklahoma counties for unpaid documentary taxes allegedly due on hundreds of real property transactions in real estate foreclosure proceedings. We hold that it is not because a county does not have standing to sue to collect unpaid documentary taxes. FACTS ¶2 Marshall County filed this case to prosecute an alleged violation of the Documentary Stamp Tax Act (DSTA), (68 O.S.2011 §§ 3201 through 3206). The DSTA imposes a tax "on each deed, instrument or writing by which any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed . . . when the consideration . . . exceeds One Hundred Dollars ($100.00)." 68 O.S.2011 § 3201(A). Absent an exemption, any tax due is collected by the county clerks through the sale of documentary stamps. 68 O.S.2011 §§ 3203 and 3204. The county clerk retains a portion of the tax and forwards the balance to the Oklahoma Tax Commission. 68 O.S.2011 § 3204. In this case, the County contends that Homesales failed to pay the required documentary tax on a deed executed in a mortgage foreclosure action filed by JPMorgan. The substance of that transaction, summarized in the following paragraph, is described in the County's petition. ¶3 On October 1, 2007, JPMorgan obtained a judgment in a real estate mortgage foreclosure action filed in Marshall County, Oklahoma, case number CJ-2004-217. A sale of the mortgaged property was conducted by the Sheriff of Marshall County and JPMorgan was the successful bidder at that sale. At the hearing to confirm the sale, JPMorgan assigned its interest to Homesales, the Sheriff's Deed was granted to Homesales and recorded with the Marshall County Clerk. Although we do not have the benefit of a more developed evidentiary record at this stage of these proceedings, the transaction described in the County's petition is similar to those evident from the summary judgment record in Murray Cnty. v. Homesales, Inc., 2014 OK 52, 330 P.3d 519. The district court's order granting summary judgment in Murray County describing these transactions in more detail is included in the record on appeal in this case. An undisputed fact in Murray County is that Homesales is a wholly owned subsidiary of JPMorgan. No documentary tax was paid by Homesales when it recorded the Sheriff's Deed in this case. The deed recited that no documentary stamps were due citing Title 68 O.S.2011 § 3202(13) exempting: "Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed . . . ." In its petition, the County alleged that Homesales was not entitled to this exemption because it was not the original mortgagee.1 ¶4 Chase filed a motion to dismiss, arguing the County did not have standing to enforce the DSTA. The district court denied that motion on April 19, 2013. The County then moved to have the case certified as a class action pursuant to Title 12 O.S. Supp. 2013 § 2023,2 with all seventy-seven counties constituting a class of plaintiffs. As relevant to this appeal, the County's motion argued that: (1) JPMorgan, as the holder of promissory notes secured by real estate mortgages, obtained a judgment in numerous foreclosure actions; (2) JPMorgan was the successful bidder at the sheriff's sale of the real property securing the mortgages in those foreclosure actions; (3) the district court would confirm the sheriff's sale by entering an order prepared by JPMorgan's attorney, Howell; (4) the order directed the sheriff to issue a deed to the real property to Homesales; (5) Homesales was the grantee of sheriff's deeds, and claimed an exemption from documentary taxes pursuant to the mortgage foreclosure exemption in Title 68 O.S.2011 § 3202(13); (6) Homesales was not entitled to an exemption from documentary taxes for any of these transactions.3 Attached to the County's motion were several exhibits including copies of two hundred and thirty-eight deeds filed with the county clerks in twenty-eight counties. Homesales was the grantee in the vast majority of these deeds, many reciting that JPMorgan assigned all of its right, title and interest to Homesales at the confirmation hearing. ¶5 The County's class certification motion and supporting brief asserts, based on these facts, that it had satisfied all four of the subdivision 2023(A) factors and that class treatment was appropriate pursuant to subdivisions 2023(B)(2) and (B)(3). The district court conducted a hearing on the County's motion and on May 20, 2013, entered its Journal Entry granting the County's motion and certifying a class of plaintiffs consisting of all seventy-seven Oklahoma counties. The order finds that "questions of law and fact are common to all the members of the class as well as the Defendants" and that the County had "satisfied the prerequisites of 12 Okl.St.Ann. § 2023(A)." The order then provides: The Court, having considered the matters set forth in Title 12 Okl.St.Ann. §(B)(3) finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The order concludes that the case "shall be maintained as a class action pursuant to 12 Okla. Stat. Ann. § 2023(A) and (B)(3)."4 Chase appeals that order.5 STANDARD OF REVIEW ¶6 When Oklahoma's class action statute was originally enacted, class certification orders were reviewed pursuant to an abuse-of-discretion standard. Shores v. First City Bank Corp., 1984 OK 67, ¶ 4, 689 P.2d 299, 301. In 2009, the Legislature replaced the abuse-of-discretion standard with de novo appellate review for any class certification order entered after November 1, 2009. 12 O.S. Supp. 2009 § 2023(C)(2) (declared unconstitutional on other grounds in Douglas v. Cox Ret. Props., Inc., 2013 OK 37, 302 P.3d 789). In its 2013 First Extraordinary Session, the Legislature re-adopted the de novo standard of appellate review for orders certifying a class action. Laws 2013, 1st Extr. Sess., HB 1013, ch. 10, § 4, emerg. eff. September 10, 2013. This Court has previously recognized the Legislature's authority to specify the standard of appellate review in circumstances like this. Kentucky Fried Chicken of McAlester v. Snell, 2014 OK 35, ___ P.3d ___(providing the standard for appellate review of Workers' Compensation Court orders is within the authority of the Legislature). The de novo standard of review is familiar to appellate courts, and we conclude the Legislature intended to invoke that settled law when it changed the standard of review for class certification orders. Cf., Peoplelink, LLC. v. Bear, 2014 OK 65, ¶ 6, ___ P.3d ___(applying the traditional against-the-weight-of-the-evidence equity standard of review in appeals of Workers' Compensation Court orders finding Legislature was familiar with the Court's decisions using that standard and must have intended that standard by including identical language in Workers' Compensation Court statute). ¶7 However, de novo review has historically been confined to review of legal rulings. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5, 293 P.3d 964, 966 (de novo review requires a plenary, independent, and non-deferential examination of the trial court's rulings of law). In contrast, a trial court's factual determinations in an equitable proceeding have traditionally been accorded deferential treatment. Krumme v. Moody, 1995 OK 140, 910 P.2d 993 (appellate court examines the record, weighs the evidence and accepts the trial court's findings of fact unless they are against the clear weight of the evidence). The tradition in equitable proceedings is an appropriate reference because class action procedure was initially developed from equity practice. Mattoon v. City of Norman, 1981 OK 92, ¶ 9, 633 P.2d 735, 737. ¶8 To decide a class certification motion the district court is required to determine whether the prerequisites for a class action have been satisfied. That determination often requires analysis of the elements of the claim or cause of action to determine the "core liability issues" the class will have to prove in order to prevail and the nature of the evidence purportedly available to do so. Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, ¶ 1, 41 P.3d 366, 367. Accord General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 102 S. Ct. 2364 (1982) (court must conduct a "rigorous analysis" to determine if requirements for class certification have been met).6 And, when necessary to decide a class certification motion, courts must resolve factual disputes raised by the parties to determine whether the movant has satisfied the statutory prerequisites for a class action, even if those disputes involve the merits of the plaintiff's claim. Masquat v. DaimlerChrysler Corp., 2008 OK 67, ¶ 10, 195 P.3d 48, 52-53 (citing Steven S. Gensler, Civil Procedure: Class Certification and the Predominance Requirement Under Oklahoma Section 2023(B)(3), 56 Okla. L. Rev. 289, 316 (2003)) (Oklahoma follows the "modern view" that consideration of the merits of the classes' claim is appropriate to the extent necessary to determine what individual issues might have to be litigated). However, just as a class certification order is "conditional, and may be altered or amended before the decision on the merits," Title 12 O.S. Supp. 2013 § 2023(C)(1), any factual determination necessary to resolving the class certification motion is preliminary and will not have any issue-preclusive effect in the post-certification litigation. See Burgess v. Farmers Ins. Co., Inc., 2006 OK 66, ¶¶ 15-16, 151 P.3d 92, 100 (district court may properly consider the parties' "forecast" of the evidence at certification hearing). Cf., Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 114 (2009) (if necessary to resolve a class certification motion, courts must resolve factual disputes concerning certification requirements "with no issue-preclusive effect in the event of trial"). Therefore, the district court's disposition of the class action issue does not ultimately determine any issues of fact. As a result, class certification resolves only a question of law and the de novo standard required by Title 12 O.S. Supp. 2013 2023(C)(2) is appropriate for appellate review of class certification orders entered after November 1, 2009. ANALYSIS ¶9 Chase filed this appeal raising two issues: (1) whether the County has standing to prosecute this action, and (2) whether the district court erred in certifying this case as a class action.7 We have jurisdiction to hear the appeal of the class certification order pursuant to Title 12 O.S.2011 § 993(A)(6). A party's standing may be raised at any time during the litigation. Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1236. I. The Standing Issue ¶10 Chase moved to dismiss the County's petition, arguing the County did not have standing. The district court's April 2013 order denying that motion is attached to Chase's petition in error and is one of the two orders Chase seeks to have reviewed in this appeal. That order is not appealable as a matter of right. 12 O.S. Supp. 2013 § 993. And, it does not contain the district court's certification required for an immediate appeal pursuant to Title 12 O.S.2011 § 952(b)(3). [A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the final judgment, decree, or final order adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk. 12 O.S.2011 § 994(A). The April 2013 order denying Chase's motion to dismiss is not subject to appellate review at this stage of the proceedings and Chase's appeal of that order is dismissed. However, Chase also argues in its brief-in-chief that the County lacks standing to prosecute this action. Chase's standing argument is resolved by our decision in Murray County; the County has standing to seek declaratory and/or injunctive relief regarding the DSTA. Murray County, 2014 OK 52, ¶¶ 19-20, 330 P.3d at 528-29. "If standing exists, the case must proceed on the merits." Independent Sch. Dist. No. 9 v. Glass, 1982 OK 2, ¶ 10, 639 P.2d 1233, 1237. II. The Class Certification Issue ¶11 Chase also appeals the district court's May 2013 Journal Entry granting the County's motion and certifying a class of plaintiffs consisting of all seventy-seven counties in Oklahoma. A party may represent those not named in the litigation only if: 1. The class is so numerous that joinder of all members is impracticable;2. There are questions of law or fact common to the class;3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and4. The representative parties will fairly and adequately protect the interests of the class. 12 O.S. Supp. 2013 § 2023(A). In addition, the party seeking class certification must show that class treatment is authorized by one of the three types of cases or forms of relief described in subdivision 2023(B). Burgess, 2006 OK 66, ¶ 10, 151 P.3d at 98. In its motion and brief for class certification, the County argued that certification was authorized: (1) pursuant to subdivision 2023(B)(2) because class-wide injunctive and declaratory relief is appropriate; and (2) pursuant to subdivision 2023(B)(3) because common issues of law and fact predominate and a class action is superior to other methods of resolving this dispute. The district court certified the class pursuant to subdivision 2023(B)(3). A. 2023(B)(3) Certification ¶12 The County alleges in its petition that the monetary damages in this case exceed $75,000 but not $5,000,000. Its class certification motion asserts: "Plaintiffs seek class certification under 12 Okl.St.Ann. §2023(B)(3) for monetary damages, including punitive damages." "Individualized monetary claims belong in [section 2023(B)(3)]." Wal-Mart Stores, Inc., v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2558 (2011). Therefore, any damage claim the County might have must be brought pursuant to subdivision 2023(B)(3). However, in Murray County we held that a county's standing with respect to actions involving the DSTA was limited to actions seeking equitable relief. Murray County, 2014 OK 52, ¶¶ 19-20, 330 P.3d at 528-29. A county may sue for a judgment declaring that a particular conveyance is subject to documentary tax and it may seek to enjoin a deed grantee from claiming an exemption from documentary taxes when the exemption is not warranted. What the County may not do is sue to collect unpaid documentary taxes. Id. ¶ 15, 330 P.3d at 527. Yet the County's reliance on subdivision (B)(3) and its argument that each class plaintiff's individual claim for damages does not preclude class certification shows that is precisely what the County is trying to do. Although the district court's class certification order was entered without the benefit of this Court's Opinion in Murray County, a county does not have standing to pursue damage claims for unpaid documentary taxes; that responsibility lies solely with the Oklahoma Tax Commission and the Oklahoma Attorney General. Id. The district court's order certifying a class of plaintiffs based on subdivision 2023(B)(3) is reversed. B. 2023(B)(2) Certification ¶13 Even though the district court based it certification order on subdivision 2023(B)(3), the County also sought to have a class certified pursuant to subdivision 2023(B)(2). "Where the trial court reaches the correct result for the wrong reasons or on incorrect theories, it will not be reversed." Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 58, 148 P.3d 842, 857. Consequently, the class certification order can be affirmed if the record shows that the defendants "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." 12 O.S. Supp. 2013 § 2023(B)(2). However, to obtain certification pursuant to subdivision 2023(B)(2), the County must first show that it can satisfy the requirements of Title12 O.S. Supp. 2013 § 2023(A). Harvell v. Goodyear Tire & Rubber Co., 2006 OK 24, ¶ 8, 164 P.3d 1028, 1032; KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶ 12, 9 P.3d 683, 688. The parties focus in the district court centered on the requirement for common issues of law and fact. As a predicate to declaratory or injunctive relief, this commonality is required by Title 12 O.S. Supp. 2013 § 2023(A)(2). However, the language of subdivision 2023(A)(2) "is easy to misread." Wal-Mart, 131 S. Ct. at 2551. "Commonality requires the plaintiff to demonstrate that the class members 'have suffered the same injury.'" Id. (citing General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 102 S. Ct. 2364 (1982)). The common contention must be of such nature that "it is capable of classwide resolution . . . in one stroke." Wal-Mart, 131 S. Ct. at 2551, Accord, Harvell, 2006 OK 24, ¶ 27, 164 P.3d at 1038 ("Certification is generally reserved for cases in which broad, class-wide injunctive or declaratory relief is necessary to address a group-wide injury . . . ."). Consequently, injunctive and declaratory relief pursuant to subdivision 2023(B)(2) is appropriate only if it will settle "the legality of the behavior with respect to the class as a whole . . . ." Advisory Committee Notes to the 1966 amendments to Federal Rule of Civil Procedure 23, 39 F.R.D. 98-107 (1966).8 ¶14 Although the County's motion and brief assert that declaratory and injunctive relief is appropriate, section 2023 "does not set forth a mere pleading standard." Wal-Mart, 131 S. Ct. at 2551. The County's petition must contain "factual allegations sufficient to demonstrate a plausible claim for relief." 12 O.S. Supp. 2013 § 2023(B). And when challenged, as in this case, the County must provide evidentiary support for those allegations. Masquat, 2008 OK 67, ¶ 9, 195 P.3d at 52 (party seeking certification has the burden of proving each of the statutory elements); Harvell, 2006 OK 24, ¶ 10, 164 P.3d at 1032 (in determining class certification issues, the court accepts as true only uncontroverted pleading allegations and undenied arguments of counsel). At the certification hearing, the County offered evidentiary support for its motion in the form of two hundred and sixty-eight conveyances, the vast majority of which are to Homesales as grantee of a sheriff's deed in cases in which JPMorgan obtained a mortgage foreclosure judgment. The County argues that these conveyances are taxable because Homesales is not entitled to an exemption from documentary taxes. ¶15 Pursuant to this Court's holding in Murray County, the taxability of these conveyances depends, in the first instance, on proof that consideration in excess of the statutory minimum was exchanged, and that proof requires individual evidence of each and every transaction challenged by the County and the putative class. The DSTA does not assess a tax on every deed recorded with a county clerk. Documentary tax is only assessed on a "deed, instrument, or writing by which any lands, tenements, or other realty [is] sold . . . [and] the consideration or value of the interest or property conveyed . . . exceeds One Hundred Dollars ($100.00)." 68 O.S.2011 § 3201(A). Further, it is not unlawful to exercise the "privilege" of conveying real property and recording that conveyance with the county clerk. See Johnston v. Okla. Tax Comm'n, 1972 OK 88, 497 P.2d 1295. That privilege may be exercised even if the deed is not subject to documentary tax. 68 O.S.2011 § 3202 (providing an exemption from documentary taxes for fourteen kinds of deeds and conveyances). Therefore, evidence that a deed was filed does not justify the inference that a "sale" has occurred or that taxable consideration was paid for the conveyance. The absence of evidence that a potentially taxable sale had occurred was the reason this Court reversed the summary judgment granted in favor of Murray County. Murray County, 2014 OK 52, ¶¶ 28-31, 330 P.3d at 532-33. ¶16 The same problem is evident from this record. It is true, as the County argues, that most of the facts regarding these transactions have similar elements. The majority of the facts are established by the public record; they are not in dispute and it is unlikely they would be contested at trial. However, proof of the facts asserted by the County to be "common" does not advance the determination of the "core liability issues." Scoufos, 2001 OK 113, ¶ 1, 41 P.3d at 367. The asserted common issues must make some difference in the case. The initial core liability issue in this case is whether taxable consideration was exchanged between JPMorgan and Homesales. Murray County, 2014 OK 52, ¶ 27, 330 P.3d at 531-32. Therefore, to successfully prosecute its class certification motion, the County is required to "affirmatively demonstrate" compliance with the class action statute by being prepared to prove, at least, that commonality as to taxability does "in fact" exist. Wal-Mart, 131 S. Ct. at 2551. The deeds relied on by the County do not satisfy the required showing. ¶17 As a result, the record is not sufficiently developed for this Court to be able to determine whether class treatment is appropriate pursuant to subdivision 2023(B)(2). Appellate courts do not normally make first-instance determinations of disputed issues of law or fact. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d 581, 587. We decline to do so here. CONCLUSION ¶18 Although the County has standing, its standing is limited to the pursuit of equitable relief. The order certifying a class of Oklahoma counties pursuant to Title 12 O.S. Supp. 2013 § 2023(B)(3) is reversed, and this case is remanded for consideration of the County's request to certify a class of plaintiffs pursuant to subdivision 2023(B)(2) of the class action statute. ORDER OF THE DISTRICT COURT CERTIFYING A CLASS ACTION ISREVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. ¶19 REIF, V.C.J., WATT, EDMONDSON, GURICH, JJ., and FISCHER, S.J., concur. ¶20 KAUGER, J., concurs in part; dissents in part. ¶21 WINCHESTER, TAYLOR, and COMBS (by separate writing), JJ., dissent. ¶22 COLBERT, C.J., recused. FOOTNOTES 1 The County's petition also alleged that Homesales and JPMorgan conspired with their attorney in the foreclosure action, Jason Howell, to avoid payment of the documentary taxes and that they fraudulently represented to the Marshall County Clerk that the transaction was exempt. The County's "fraud and conspiracy claim" is disposed of by our holding in Murray County. Conspiring to fraudulently represent that documentary taxes are not due is a misdemeanor punishable by the penalties set out in section 3206 of the DSTA. Only the Oklahoma Tax Commission and the Oklahoma Attorney General are authorized by the Legislature to prosecute violations of that Act. Consequently, the County does not have standing to pursue a "fraud and conspiracy theory" to collect unpaid documentary taxes in this case because it does not have statutory authority to prosecute violations of the DSTA. Murray County, 2014 OK 52 n.3, 330 P.3d 519. 2 Title 12 O.S. Supp. 2013 § 2023 provides in relevant part: A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:1. The class is so numerous that joinder of all members is impracticable;2. There are questions of law or fact common to the class;3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and4. The representative parties will fairly and adequately protect the interests of the class. B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied, if the petition in the class action contains factual allegations sufficient to demonstrate a plausible claim for relief and:1. The prosecution of separate actions by or against individual members of the class would create a risk of:a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, orb. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:a. the interest of members of the class in individually controlling the prosecution or defense of separate actions,b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, andd. the difficulties likely to be encountered in the management of a class action. 3 The motion also alleges that with respect to some of the challenged deeds, JPMorgan was not the grantor to Homesales, and in others, Homesales was the grantor to third parties who unlawfully claimed a documentary tax exemption. Nonetheless, the motion asserts that in more than ninety percent of the transactions, JPMorgan was the judgment creditor and Homesales was the deed grantee. 4 The order also states: "The Court further finds that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the defendants." This language repeats the subdivision 2023(B)(1) basis for certifying a class action. However, neither the County's motion for class certification nor the district court's order certifying the class relies on subdivision B(1) as authorizing a class of plaintiffs in this case. 5 Howell is also an appellant in this case, but his position and legal arguments do not differ from those asserted by Chase. 6 See Cactus Petroleum Corp. v. Chesapeake Operating, Inc., 2009 OK 67, n.8, 222 P.3d 12 (Court may look to federal authority for guidance in interpreting Oklahoma's class action statute); Perry v. Meek, 1980 OK 151, ¶ 17, 618 P.2d 934, 939 ("The large body of authority which has grown around federal class actions is quite useful in determining the advantageous application of class action theory into practice."). 7 The first appeal after the district court's May 20, 2013, Journal Entry was filed by the County, Case No. 111,786, and sought to have the district court's class certification order affirmed. Chase moved to dismiss this appeal arguing that only a party "aggrieved" by a class certification order could appeal citing Title 12 O.S.2011 § 993(A)(6). Subsequently, Chase filed its own appeal, Case No. 111,870, and the two appeals were consolidated. Chase then moved to realign the parties showing it to be the appellant and the County to be the appellee. The County did not object and the parties were realigned as requested. As a result, Chase's motion to dismiss Case No. 111,786 is moot. 8 "In construing Section 2023 Oklahoma courts should consult the Advisory Notes to the 1966 amendments to Federal Rule of Civil Procedure 23." Committee Comment to Section 2023, Okla. Stat. Ann. tit. 12, § 2023 (West 2010). COMBS, J., with whom WINCHESTER and TAYLOR, JJ., join, dissenting: ¶1 For reasons expressed originally in my dissenting opinion in Murray County v. Homesales, Inc., 2014 OK 52, 330 P.3d 519, I must respectfully dissent. In this cause, Appellants assert that 1) Appellee lacks standing to bring this action; and 2) the district court erred by certifying this cause as a class action. Relying on this Court's decision in Murray County, the majority determines that even though Appellee lacks standing to sue to enforce the Documentary Stamp Tax Act (DSTA), 68 O.S. 2011 § 3201 et seq., it possess standing to seek equitable relief in the form of a declaratory judgment or an injunction. Having reached that determination, the majority proceeds to determine that the district court's certification order, based upon 12 O.S. Supp. 2013 § 2023(B)(3), was improper because Appellee does not have standing to seek monetary damages pursuant to the DSTA. ¶2 The majority also determines that certification of the class pursuant to 12 O.S. Supp. 2013 § 2023(B)(2) would be premature because Appellee must first show that it can satisfy the commonality requirements of 12 O.S. Supp. 2013 § 2023(A). The majority concludes that Appellee is required to affirmatively demonstrate compliance with the class action statute by being prepared to prove that commonality as to taxability does in fact exist, and further concludes that the deeds relied upon by Appellee do not satisfy the required showing. Accordingly, the majority reverses the trial court's certification order but remands this cause for further development of the record and further consideration of the class certification question. ¶3 Because I do not believe Appellee possesses standing to sue in this cause--either to enforce the DSTA or to pursue equitable relief--the question of standing is dispositive and reaching the issue of the class certification order is unnecessary. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶9, 890 P.2d 906 ("Only if standing exists must the case proceed to the merits for the reason only one whose substantial rights are injuriously affected may appeal from a decision, however erroneous.") (Internal citations omitted). Essentially, Appellee is unable to meet one of the three central requirements this Court has set out for standing: a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable court decision. Murray County, 2014 OK 52, ¶2 (Combs, J., dissenting); J.P. Morgan Chase Bank, Nat'l Assoc. v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62. Neither a declaratory judgment nor an injunction will result in Appellee obtaining the lost revenue they claim that they are due under the DSTA. A declaratory judgment that the DSTA was violated is nothing more than a stepping stone to eventual enforcement of the DSTA, which this Court has already declared plaintiffs in Appellee's position cannot do. ¶4 Appellee's attempts to secure equitable relief represent nothing more than an attempt to circumvent their lack of standing to sue to directly enforce the provisions of the DSTA. As I previously emphasized in Murray County, 2014 OK 52, ¶13 (Combs, J., dissenting): [t]his Court has long relied upon the axiom that what may not be done directly should not be allowed to be done indirectly. In Re Oklahoma Capitol Imp. Authority, 2012 OK 99, ¶12, 289 P.3d 1277; Large v. Acme Engineering and Mfg. Corp., 1990 OK 34, ¶8, 790 P.2d 1086; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶15, 679 P.2d 1296. A determination by this Court that the plaintiffs can seek a declaratory judgment that documentary stamp taxes are due from the defendants pursuant to 68 O.S. § 3201 and that the exemptions claimed by the defendants were unlawful is nothing more than an end-run around the basic determination that the plaintiffs are not permitted to sue to enforce the DSTA. Having determined that the plaintiffs cannot enforce the DSTA, it does not make sense to allow them to seek declaratory relief that could lead to nothing else but subsequent action by the plaintiffs to enforce the DSTA. ¶5 Appellee is not the proper party to seek adjudication of the asserted issues. Leavitt, 1994 OK 148, ¶9. The proper party is the Oklahoma Tax Commission, which unlike Appellee, possesses authority to enforce the provisions of the DSTA. Murray County, 2014 OK 52, ¶9-15. Because Appellee lacks standing, consideration of the class certification order is unnecessary. For these reasons, I respectfully dissent.

c6a82888-ca74-465b-923c-b88666b238df

Boler v. Security Health Care, LLC

oklahoma

Oklahoma Supreme Court

BOLER v. SECURITY HEALTH CARE, L.L.C.2014 OK 80Case Number: 111775Decided: 09/30/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.  JOHNNIE BOLER, Personal Representative of the Estate of CLEO BOLER, Deceased, Plaintiff/Appellee, v. SECURITY HEALTH CARE, L.L.C., d/b/a ) GRACE LIVING CENTER - NORMAN; NORMAN PROPERTIES LLC; AMITY CARE, LLC; MIKE DIMOND; and DON GREINER, individually and d/b/a DON GREINER TRUSTEE, KENNETH D. GREINER III REVOCABLE TRUST, BENEFICIARY/TRUSTEE, Defendants/Appellants. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, THE HONORABLE PATRICIA PARRISH, DISTRICT JUDGE ¶0 This is an interlocutory appeal from an order of the District Court of Oklahoma County, Oklahoma, that refused to enforce an arbitration agreement in nursing home's contract against the wrongful death claim brought by decedent's personal representative against nursing home. We retained the appeal and affirm the trial court. AFFIRMED. Patrick M. Ryan, Phillip G. Whaley and Grant M. Lucky, RYAN WHALEY COLDIRON SHANDY PLLC, Oklahoma City, Oklahoma, and J. Michael DeYong, Gina K. Cheatham, DEYONG & CHEATHAM, P.A., Oklahoma City, Oklahoma, for the Appellants. L. Ray Maples, II, Travis Dunn, Nicole R. Snapp-Holloway, MAPLES LAW FIRM, Edmond, Oklahoma, and David W. Crowe, BAILEY, CROWE, KUGLER & ARNOLD, LLP, Dallas, Texas, for the Appellee. EDMONDSON, J. ¶1 The issue is whether the trial court erred in denying the nursing home's motion to compel arbitration. The trial judge held that the wrongful death claim belonging to Cleo Boler's statutory beneficiaries pursuant to 12 O.S. 2011 § 1053 is not subject to an agreement to arbitrate contained in her nursing home's admission contract. We agree with the trial court and hold that the personal representative and the next of kin are not bound by the arbitration agreement in the contract signed on Cleo Boler's behalf. They did not sign the nursing home contract in their personal capacities and their claim is not wholly derivative of Cleo Boler's claim. ¶2 Cleo Boler was admitted to Grace Living Center - Norman (Grace), a long-term care facility in January 2010 and was a resident there until January 2012. Judy Little (also known as Julie Little), as Cleo Boler's attorney in fact, signed the admission documents which included a three-page Dispute Resolution Provision (arbitration agreement). The arbitration agreement provided that any claim, controversy, dispute or disagreement arising out of or in connection with the care rendered to Cleo Boler would be determined by submission to neutral, binding arbitration. It purported to bind not only Cleo Boler, but any future legal representatives, heirs, successors, etc., who might assert a claim against Grace.1 ¶3 On October 28, 2011, Cleo Boler, individually, and Judy Little and Johnnie Boler as attorneys in fact, sued Grace and others for negligence, violation of the Nursing Home Care Act and breach of contract regarding the care and treatment of Cleo Boler. Grace filed a Motion to Compel Arbitration, asserting that the contract was one involving interstate commerce and was valid and enforceable under the Federal Arbitration Act (FAA), which preempts contrary state law. ¶4 Cleo Boler died on June 17, 2012, before a response to the motion to compel arbitration was filed. Johnnie Boler (Boler), as personal representative of Cleo's estate, filed a motion for substitution of parties and sought to amend the petition to add survivor claims pursuant to 12 O.S. § 1051 and wrongful death claims pursuant to 12 O.S. § 1053.2 By order filed March 7, 2013, the trial judge granted both motions. Johnnie Boler, as personal representative of Cleo Boler's estate, filed a second amended petition which brought survival claims on behalf of Cleo Boler's estate pursuant to 12 O.S. § 1051, and a wrongful death claim on behalf of Cleo Boler's beneficiaries, pursuant to 12 O.S. § 1053.3 ¶5 Boler filed a response to Grace's Motion to Compel Arbitration arguing that Grace could not compel his sister and himself to arbitrate their wrongful death claim because their claim is independent and did not arise until the death of Cleo Boler; further, that they did not sign the arbitration agreement in their personal capacities and were not bound by Cleo Boler's arbitration agreement. This is so, they maintain, even if Cleo Boler's claims must be arbitrated. ¶6 The hearing on Grace's motion to compel arbitration was held January 31, 2013, at which time the trial court addressed whether, as a matter of law, the wrongful death claim was subject to arbitration. The trial court found that wrongful death is a separate and distinct cause of action and is derivative only in the sense that the decedent must have a viable claim at the time of his death.4 The motion to compel arbitration was denied as to the wrongful death claim and the court reserved ruling on all other issues and arguments. The trial judge did not rule on the validity of the contract, but looked solely to whether the arbitration agreement was enforceable.5 Grace appealed, arguing that the trial court erred in relying on the Utah case of Bybee v. Abdulla, 189 P.3d 40 (Utah 2008), to hold that non-signatories to the arbitration agreement were not bound by it for their wrongful death claim because the claim was not wholly derivative of Cleo Boler's claim. ¶7 An order denying a motion to compel arbitration is an appealable order. 12 O.S. § 1879(A)(1). The existence of an agreement to arbitrate is a question of law to be reviewed de novo. Rogers v. Dell Computer Corp., 2005 OK 51 ¶ 18, 138 P.3d 826, 831. ¶8 The Nursing Home Care Act, 63 O.S. § 1-1918, created a statutory tort with a private right of action for nursing home residents or their guardians to redress a violation of rights conferred therein. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, 977 P.2d 357, 361-62. Liability for a statutory tort is incurred when it can be shown that the plaintiff's injury resulted from a statutory violation and that the plaintiff falls into a class of persons whom the legislature intended to protect. The Nursing Home Care Act is not the patient's exclusive remedy. Estate of Hicks v. Urban East, 2004 OK 36, 92 P.3d 88. The Act provides that the plaintiff may seek any recovery permitted by law. 63 O.S. § 1-1939(B),(C). ¶9 Wrongful death claims were not cognizable at common law; the right of action for personal injury stood extinguished by the death of the injured party. This rule was abrogated by Oklahoma's wrongful death statute. A cause of action for injury to the person is now survivable and a new and independent wrongful death claim has been created. Ouellette v. State Farm Ins. Co., 1994 OK 79, 918 P.2d 1363, 1366. On appeal, the issue is whether claims brought by non-signatory wrongful death claimants must be arbitrated. Title 12 O.S. § 1053 provides that wrongful death claims lie if, at the time of his or her death, the decedent had a right of recovery for the injury in suit. The parties disagree on whether wrongful death claims in Oklahoma are wholly or partially derivative and the effect of that distinction. ¶10 Grace argues that wrongful death claims are entirely derivative claims, binding on the next of kin, predicated solely upon the right of action personal to the decedent because the claim must have been one the decedent could have brought if she had lived. Grace directs our attention to cases in which the decedent's execution of a release and satisfaction of the claim meant there was no action surviving the death. See Haws v. Luethje, 1972 OK 146, 503 P.2d 871. Grace argues that Cleo Boler's personal representative can maintain only an action that Cleo Boler could have maintained if she had survived; otherwise, her rights are "enlarged" by Oklahoma's wrongful death statute. Thus, because she contracted to arbitrate her claims against Grace, her personal representative must arbitrate the wrongful death claim. Grace points to Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, 1300, 1301, for the proposition that such claims are wholly derivative of rights held by the decedent and the heirs are bound by the decedent's contractual agreement to arbitrate: "The action for wrongful death is not a separate and distinct tort, but is an action which derives from the rights of the decedent (citation omitted). Whatever rights the decedent might have had in his life accrue to the personal representative at death, thus overcoming the common law barrier of death." ¶11 Boler, in opposition, argues that the wrongful death claim is not wholly derivative because the statute only requires that the decedent must have had a right to sue while alive. The claim is derivative only in the sense that it must not have been extinguished before death. Boler relies on Ouellette v. State Farm Ins. Co., 1994 OK 79, 918 P.2d 1363, 1366, which states that Oklahoma's Wrongful Death Act created a new cause of action for pecuniary losses suffered by the deceased's spouse and next of kin by reason of his or her death and recovery under the Act does not go to the estate of the deceased, but inures to the exclusive benefit of the surviving spouse and children or next of kin. Thus, Boler argues, a wrongful death claim is new and independent of the claim belonging to the deceased, a conclusion bolstered by Art. 23, § 7 of the Oklahoma Constitution which provides that the right of action to recover damages for injuries resulting in death shall never be abrogated. Boler argues that basic rules of contract law prevent the arbitration agreement from being enforceable against parties who did not sign the agreement in their personal capacities. ¶12 The first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute. Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)). The existence of an arbitration agreement is governed by principles of state law. Id. ¶13 Courts in other states have differed when considering whether the decedent's heirs are bound by an arbitration agreement signed by or on behalf of the decedent. Courts in other states have based their rulings on whether the wrongful death claims are deemed wholly or only partially derivative. If wrongful death actions are considered independent and separate causes of action, courts are more likely to hold that the beneficiaries are not bound by the decedent's agreement to arbitrate. If wrongful death actions are deemed wholly derivative in nature, beneficiaries are generally held to be bound by a decedent's arbitration agreement. In re Labatt Food Service, L.P., 279 S.W.3d 640, 647 (Tex. 2009). ¶14 Even when construing statutes that predicate a wrongful death claim on the ability of the decedent to bring suit if he or she had lived, courts are split on whether the estate and heirs are bound by an arbitration agreement signed by the decedent. See Laizure v. Avante at Leesburg, Inc., 109 So. 3d 752, 761 (Fla. 2013). The "wholly derivative" states reason that if the decedent would have to arbitrate his or her claims, the heirs must arbitrate their claims because they "stand in the shoes of" the decedent. Courts that treat wrongful death claimants as wholly derivative include Florida, New Mexico, California, Texas, Mississippi, Alabama, and Michigan.6 Other states, such as Arizona, Pennsylvania, Kentucky, Illinois, Washington, Missouri, Utah, and Ohio, have treated wrongful death claims as independent from claims the decedent had and have held that the damages are not awarded to those plaintiffs on the decedent's behalf.7 Colorado has looked to whether the contract reflects the intent of the parties to bind the beneficiaries.8 ¶15 An example cited by Grace, In re Labatt Food Service, L.P., 279 S.W.3d 640, 647 (Tex. 2009), was a wrongful death action brought by deceased employee's parents and children against his employer. The plaintiffs did not specifically challenge the validity of the arbitration agreement, but argued that the entire contract was void. The district court denied the employer's motion to compel arbitration and the employer petitioned for writ of mandamus. The Supreme Court of Texas held that an arbitration agreement in a contract between an employee and his employer requiring arbitration pursuant to the Federal Arbitration Act was, under Texas law, binding on the beneficiaries, even though they did not sign the agreement. They interpreted Texas law to mean that even though the wrongful death damages are for the exclusive benefit of the beneficiaries and meant to compensate them for their personal losses, the cause of action is entirely derivative of the decedent's rights. The court held that it was for the arbitrator, rather than the court, to resolve the claim that the entire contract was invalid. ¶16 The case relied on by the trial court, Bybee v. Abdulla, 189 P.3d 40 (Utah 2008), held that the wrongful death claim was not wholly derivative. In that case the surviving spouse brought a wrongful death action against her husband's physician, alleging that his negligent care caused her husband to commit suicide. The physician filed a motion to compel arbitration which was denied. On appeal, the Supreme Court of Utah affirmed. The surviving spouse argued that she could not be compelled to arbitrate because she was not bound to a contract that she did not sign, and further that she had a constitutional right to pursue her wrongful death claim in court because it is a cause of action based on injury to the heirs rather than to an injury sustained by the patient. The court likewise found that she was not a third-party beneficiary who could be bound by the arbitration agreement. Bybee has been distinguished or held unpersuasive by the Florida Supreme Court in Laizure v. Avante at Leesburg, Inc., 109 So. 3d 752 (Fla. 2013), by the Texas Supreme Court in In re Labatt Food Services, supra, by the California Supreme Court in Ruiz v. Podolsky, 237 P.3d 584 (Cal. 2010), and by the New Mexico Court of Appeals in Estate of Krahmer ex rel. Peck v. Laurel Health Care Providers, 315 P.3d 298 (N.M. App. 2013). The Court of Appeals of New Mexico strictly construed that state's Wrongful Death Act as transmitting the resident's cause of action against the nursing home to her personal representative. Because the resident was bound to arbitrate her claims, so was her personal representative. The court observed that New Mexico does not have a "survival" statute that is distinct from its Wrongful Death Act. The New Mexico wrongful death statute does not create a new cause of action and the Court held that the available remedies were limited to only those recoverable by the decedent. Estate of Krahmer, supra. ¶17 In Laizure, the Florida Supreme Court based its decision on the derivative nature of wrongful death actions in Florida. Because the signing party's estate and heirs are bound by defenses that could be raised in a personal injury suit brought by the decedent, as well as by releases signed by the decedent, they are also bound by the choice of forum agreement signed by the decedent in a wrongful death action arising out of the treatment and care of the decedent. The court stated that although Florida's wrongful death act has long been characterized as creating a new and distinct right of action from the right of action the decedent had prior to death,the actions are derivative because they are dependent on a wrong committed against the decedent. 109 So. 3d at 760-61. Defenses that would have been available to the defendant if the decedent had lived are equally available to the defendant in a wrongful death action. ¶18 Courts that are in accord with Bybee, supra, apply a similar analysis and conclude that the wrongful death claim is not wholly derivative. In Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky. 2012), the arbitration agreement was optional and was not a condition of admission. The court determined that the daughter's durable power of attorney did not authorize her to bind her mother to the arbitration agreement she signed. It also determined that even if the decedent were bound by the arbitration agreement, the wrongful death claimants would not be bound because their statutorily-distinct claim does not derive from any claim on behalf of the decedent. The court discussed the distinction between survival claims, which the estate brings on its own behalf, and the wrongful death claim, which the representative brings not on behalf of the estate, but on behalf of the statutory wrongful death beneficiaries. The Kentucky wrongful death statute provides that the wrongful death action shall be prosecuted by the personal representative and the amount recovered, less certain expenses, shall be for the benefit of and go to the kindred of the deceased as specified in the statute. It recognized that some states treat the wrongful death action as derivative of the personal injury claim, while in others the two claims are regarded as independent. It observed that the constitutional status of the wrongful death claim in Kentucky is a strong indication of that claim's independence. It concluded that under their law the wrongful death claim accrues separately to the wrongful death beneficiaries and is meant to compensate them for their own pecuniary loss; thus, the court agreed with Bybee and other cases holding that a decedent cannot bind his or her beneficiaries to arbitrate their wrongful death claim. ¶19 In Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab, Inc., 316 P.3d 607 (Ariz. App. 2014), the Arizona Court of Appeals ruled that the arbitration agreement was valid and enforceable but because the wrongful death claim was not wholly derivative of the resident's rights it was therefore not subject to the arbitration clause. It recognized that the rules of contract interpretation apply equally in the context of arbitration clauses, citing the Arizona Supreme Court in Southern California Edison Co. v. Peabody Western Coal Co., 977 P.2d 769, 773. The court concluded that a claim under Arizona's equivalent of our Nursing Home Care Act, belonged to the decedent and survived as an asset of her estate. The statutory beneficiaries under the wrongful death claim were not subject to the arbitration clause because the wrongful death statute confers an original and distinct claim for the damages sustained by the statutory beneficiaries named therein and is not derived from, nor a continuation of, claims that formerly existed in a decedent. 316 P.3d at 613. ¶20 The Supreme Court of Illinois rejected a nursing home's argument that the personal representative is merely the conduit by which the rights of the decedent are litigated after his or her death. Carter v. SSC Odin Operating Co. LLC, 976 N.E.2d 344 (IL 2012). Illinois' wrongful death statute provides that where the decedent could have maintained an action against the nursing home if death had not ensued, the defendant shall be liable in an action for damages brought by the personal representative.9 The statute provides that no action can be brought if the decedent had brought a claim on the same occurrence which settled or had judgment rendered. The Illinois Supreme Court stated: "Defendant overstates the significance of the derivative nature of a wrongful death action. Although a wrongful-death action is dependent upon the decedent's entitlement to maintain an action for his or her injury had death not ensued, neither the Wrongful Death Act nor this court's case law suggests that this limitation on the cause of action provides a basis for dispensing with basic principles of contract law in deciding who is bound by an arbitration agreement. ¶21 In the Illinois case, the special administrator signed an arbitration agreement with the nursing home as resident's legal representative and the resident herself signed a second arbitration agreement with the nursing home. After the resident's death, the special administrator of the decedent's estate brought an action asserting claims under the Nursing Home Care Act and claims under the Wrongful Death Act against the nursing home operator. The court held that the administrator was bound to arbitrate the survival claims under the Nursing Home Care Act, but was not bound to arbitrate the claims under the Wrongful Death Act. The plaintiff could not be compelled to arbitrate the wrongful death claim because she did not sign the arbitration agreement in her individual capacity, a basic principle of contract law.10 ¶22 The Illinois nursing home made essentially the same arguments Grace has made in this case: that a wrongful death action is derivative of, and thus limited to, what the decedent's cause of action against the defendant would have been if she had lived. If the decedent's claim would have been subject to arbitration, then the wrongful death claim is likewise subject to arbitration, the nursing home argued. The Illinois court observed that arbitration is a creature of contract, and under basic principles of contract law only parties to the contract may compel arbitration or be compelled to arbitrate. Although the Federal Arbitration Act (FAA) directs courts to place arbitration agreements on equal footing with other contracts, it does not require parties to arbitrate when they have not agreed to do so. Arbitration under the FAA is a matter of consent, not coercion. The Illinois court held that the special representative was a nominal party effectively filing suit on behalf of resident's next of kin. The court recognized the difference between the survival cause of action and the wrongful death cause of action.11 The case was decided on basic principles governing contract law. ¶23 Oklahoma distinguishes survivor actions (those that could be brought by the decedent while alive) from wrongful death actions.12 A wrongful death action pursuant to § 1053 may be maintained by the personal representative of the deceased person, for and on behalf of the surviving spouse and children and the parents.13 The potential damages include: the loss of consortium and grief of the surviving spouse; the mental pain and anguish suffered by the deceased, which shall be distributed to the surviving spouse and children, or next of kin, in the same proportion as personal property of the decedent; the pecuniary loss to the survivors based on the projected duration of the decedents life, which must inure to the exclusive benefit of the surviving spouse and children; and grief and loss of companionship of the parents and children of the decedent. The amounts recovered are distributed to those designated parties as specified in the statute. These are distinct claims for damages sustained by the statutory beneficiaries. ¶24 Oklahoma's Constitution, Art.23 § 7, provides that the right of action to recover damages for injuries resulting in death shall never be abrogated. The Oklahoma Arbitration Act provides that an agreement to submit any existing or subsequent controversy to arbitration is valid, enforceable and irrevocable except upon a ground that exists in law or equity for the revocation of a contract. 12 O.S. § 1857(A). If necessary, a court shall decide whether an agreement to arbitrate exists or whether a controversy is subject to an agreement to arbitrate. 12 O.S. § 1857(B). Oklahoma has recognized that although the FAA favors arbitration when it is the parties' contractual choice of a remedial forum, courts will not impose arbitration upon parties where they have not agreed to do so. Okla. Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12 ¶22, 160 P.3d 936 (arbitration is a matter of consent, not coercion, citing Volt Info. Sciences Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468 (1989)). To assure that the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by it and whether the parties agreed to submit a particular dispute to arbitration. ¶25 Consent to arbitrate is an essential component of an enforceable arbitration agreement. The personal representative and the heirs are not bound to an agreement that they did not sign. Judy Little did not sign in her individual capacity and did not, by signing on her mother's behalf, express an intent to relinquish any rights she might possess in her individual capacity. ¶26 We agree with the courts that have held that a decedent cannot bind the beneficiaries to arbitrate their wrongful death claim. Oklahoma's Wrongful Death Act created a new cause of action for pecuniary losses suffered by the deceased's spouse and next of kin by reason of his or her death. Recovery under the wrongful death act does not go to the estate of the deceased, but inures to the exclusive benefit of the surviving spouse and children or next of kin. Ouellette v. State Farm Ins. Co., 1994 OK 79, 918 P.2d 1363, 1366. If the decedent extinguishes the claim while alive, however, there is no claim surviving the decedent's death. Haws v. Luethje, 1972 OK 146, 503 P.2d 871. ¶27 We conclude that the wrongful death claim accrues separately to the wrongful death beneficiaries and is intended to compensate them for their own losses. The personal representative is prosecuting the wrongful death claim on behalf of the statutory beneficiaries set out in 12 O.S. § 1053. The trial court did not err in denying Grace's motion to compel arbitration of the wrongful death claim. AFFIRMED. ¶28 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, TAYLOR, COMBS, GURICH, JJ., concur. ¶29 WINCHESTER, J., dissents FOOTNOTES 1 The Dispute Resolution Provision signed January 18, 2010, by Julie Little on behalf of Cleo Boler provides, in pertinent part: DISPUTE RESOLUTION PROVISION/AGREEMENT 1. Resident and [Grace Living Center (GLC)] acknowledge that resolving legal claims in the courts can be, and often is, time consuming and expensive. Both Resident and GLC desire to have any claim, controversy, dispute or disagreement arising out of or in connection with the care rendered to Resident by GLC and/or arising out of or in connection with the Admission Agreement pursuant to which that care is rendered, whether asserted by Resident against GLC or by GLC against Resident, resolved quickly and with a minimum of legal expense and delay. 2. Both Resident and GLC therefore agree that any claim, controversy, dispute or disagreement arising out of or in connection with the care rendered to Resident by GLC, and/or arising out of or in connection with the Admission Agreement pursuant to which said care is rendered . . . including claims by Resident against GLC involving, and/or arising out of conduct committed by GLC's agents . . . . or others for whom and or which GLC is , may be or is asserted to be legally responsible . . ., said claim, controversy, dispute or disagreement to include without limitation any claim, controversy, dispute or disagreement arising out of the provision of services by GLC, the Admission Agreement, the validity, interpretation, construction, performance and/or enforcement thereof, or which otherwise alleges violations of any state or federal law and/or otherwise seeks an award of compensatory damages, punitive damages, injunctive relief, costs and/or attorney fees (referred to subsequently as "Resident/GLC dispute"), shall be determined by submission to neutral, binding arbitration pursuant to the guidelines and requirements promulgated by federal and state law and subject to appropriate judicial review of arbitration proceedings as authorized by such laws. By entering into this agreement, both parties explicitly waive any right to have any Resident/GLC dispute decided in a court of law or equity, whether by or before a jury or by the court itself, and instead accept the use of neutral, binding arbitration as the sole means of dispute resolution. * * * * * * 6. The Dispute Resolution Provision applies to and binds the Resident and GLC. In addition, it applies to and binds any and all persons and/or entities who and/or which may assert a claim on behalf of, or derived through, the Resident and/or GLC, including without limitation their legal representative, guardians, heirs, executors, administrators, estate(s), successors and assigns; further, it applies to and binds any and all persons and/or entities who and/or which are or may be legally responsible for them, or for whom and/or which may be legally responsible, including without limitation their agents, principals, employees, managers, management companies, consultants, owners, members, operators, partners, officers, directors, shareholders, insurer(s), legal representatives, guardians, heirs, executors, administrators, estate(s), successors and assigns. As such, it is recognized and agreed that this Dispute Resolution Provision survives the death, as well as the incompetency, of the Resident and cannot be revoked by said death or incompetency. * * * NOTICE: BY SIGNING THIS AGREEMENT THE RESIDENT AGREES TO HAVE ANY RESIDENT/GLC DISPUTE DECIDED BY NEUTRAL BINDING ARBITRATION AND WAIVES ANY RIGHT TO TRIAL IN A COURT OF LAW OR EQUITY; PROVIDED; HOWEVER, NOTHING HEREIN SHALL PREVENT THE PARTIES FROM RESOLVING ANY RESIDENT/GLC DISPUTE BY NEGOTIATION BY AND BETWEEN THEMSELVES OR BY USE OF AN AGREED UPON THIRD PARTY MEDIATOR. I hereby certify that I have read, understand, and agree to the terms of this Dispute Resolution Provision. 2 See footnotes 12 and 13, infra. 3 The survival claim sought compensatory, actual and punitive damages allowed by law related to Cleo Boler's physical injuries, mental pain and suffering, loss of companionship and parental care from Cleo Boler, reasonable expenses for necessary medical care, treatment and services; funeral and burial expenses. The wrongful death claim was for all compensatory, actual and punitive damages allowed by law including, but not limited to, Cleo Boler's pain and suffering; the grief of her children; the loss of companionship and parental care from Cleo Boler to her children; the loss of companionship suffered by her children; her children's grief; the loss of Cleo Boler's society, services, companionship and marriage relationship suffered by her family; the medical and burial expenses and the loss of financial support of Cleo Boler to her children. 4 The trial court's order was filed April 16, 2013. 5 The trial judge stated: I am going to follow the rationale of the Utah case and hold that, particularly in Oklahoma, since there is a constitutional provision as there was in the Utah case, that sort of elevated the status of a wrongful death claim. That, coupled with the fact that in Oklahoma it talks about it being derivative. And I think we all agree it is derivative. I believe that goes more to the extinguishment of the cause of action as opposed to whether or not someone chose to go to arbitration. * * * So I am going to rule, as a matter of law, that a wrongful death action is a separate and distinct cause of action. And that, although it is derivative , and that the decedent's claim has to have not been extinguished, I think that it doesn't apply to the arbitration clause in this case. So I'm not going to order this case to arbitration. But it is also my understanding that this is an issue that can be immediately appealed. Tr. pp. 45-46. * * * Maybe we should just make that clear in the order that I'm ruling solely on wrongful death. I did not take evidence on the interstate commerce aspect of that. Tr. p. 53. The trial judge did not rule on the plaintiff's unconscionability argument, stating that she would have wanted to take evidence on that issue. Tr. p. 48. 6 Laizure v. Avante at Leesburg, Inc., 109 So. 3d 752 (Fla. 2013); Estate of Krahmer ex rel. Peck v. Laurel Healthcare Providers, LLC, 315 P.3d 298 (N.M. App. 2013); Ruiz v. Podolsky, 237 P.3d 584 (Cal. 2010); In re Labatt Food Service, L.P., 279 S.W.3d 640 (Tex. 2009); Trinity Mission Health & Rehab. of Clinton v. Estate of Scott ex rel. Johnson, 19 So. 3d 735 (Miss. Ct. App. 2008); Briarcliff Nursing Home, Inc. v. Turcotte, 894 So. 2d 661 (Ala. 2004); Ballard v. Southwest Detroit Hosp., 327 N.W.2d 370 (Mich. App. 1982). 7 Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab., Inc., 316 P.3d 607 (Ariz. App. 2014); Pisano v. Extendicare Homes, Inc. 77 A.3d 651 (PA Super. 2013); Ping v. Beverly Enterprises, Inc. 376 S.W.3d 581 (Ky 2012); Carter v. SSC Odin Operating Co. Llc, 976 N.E.2d 344 (IL 2012); Woodall v. Avalon Care Center-Federal Way, LLC, 231 P.3d 1252 (Wash. App. 2010); Lawrence v. Beverly Manor, 273 S.W.3d 525 (Mo. 2009); Bybee v. Abdulla, 189 P.3d 40 (Utah 2008); Peters v. Columbus Steel Castings Co., 873 N.E.2d 1258 (Ohio 2007). 8 Allen v. Pacheco, 71 P.3d 375 (Colo. 2003). 9 The Illinois Wrongful Death Act is codified at 740 ILCS 180, et. seq. Section 180/1 provides: Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. No action may be brought under this Act if the decedent had brought a cause of action with respect to the same underlying incident or occurrence which was settled or on which judgment was rendered. Section 180/2 provides, in pertinent part: Every such action shall be brought by and in the names of the personal representatives of such deceased person and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorror and mental suffering, to the surviving spouse and next of kin of such deceased person. The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person. * * * 10 The Illinois Supreme Court considered other contractual issues that are not presented in this appeal. 11 A survival action allows for recovery of damages for injury sustained by the deceased up to the time of death. A wrongful death action covers the time after death and addresses the injury suffered by the next of kin due to the loss of the deceased, rather than the injuries personally suffered by the deceased prior to death. Id. at ¶ 34. 12 12 O.S. § 1051 provides, in pertinent part: In addition to the causes of action which survive at common law, causes of action for . . . an injury to the person . . . shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same. 13 12 O.S. 2011 § 1053 provides, in pertinent part: A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter . . if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission. The action must be commenced within two (2) years. B. The damages recoverable in actions for wrongful death . . . shall included the following: Medical and burial expenses . . . The loss of consortium and the grief of the surviving spouse, which shall be distributed to the surviving spouse. The mental pain and anguish suffered by the decedent, which shall be distributed to the surviving spouse and children, if any, or next of kin in the same proportion as personal property of the decedent. The pecuniary loss to the survivors based upon properly admissible evidence with regard thereto . . . , which must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin, and shall be distributed to them according to their pecuniary loss. The grief and loss of companionship of the children and parents of the decedent, which shall be distributed to them according to their grief and loss of companionship. * * * WINCHESTER, J., dissenting: ¶1 Citing a handful of cases from other states, the majority disregards long-standing Oklahoma case law that finds wrongful death actions derivative of the rights of the deceased. Riley v. Brown and Root, Inc., 1992 OK 114, ¶ 10, 836 P.2d 1298, 1300-1301 ("The action for wrongful death is not a separate and distinct tort, but is an action which derives from the rights of the decedent."). While it is true that Oklahoma's wrongful death statutes allow a cause of action to be brought by decedent's beneficiaries, this right of action "is predicated solely upon the right of the action which was personal to the decedent had he lived." Hill v. Graham, 1967 OK 10, ¶ 14, 424 P.2d 35, 37-38. ¶2 Wrongful death beneficiaries stand in the same legal shoes as the decedent, carrying "no more and no less rights than did the decedent." Riley v. Brown and Root, Inc., 1992 OK 114, ¶ 13, 836 P.2d 1298, 1301. See also Haws v. Luethje, 1972 OK 146, ¶ 13, 503 P.2d 871. In Haws, the Court held that a wrongful death claimant "may not accomplish what the decedent could not" even though the wrongful death claim does not technically accrue until the decedent's death. To conclude otherwise would provide the beneficiaries with greater rights than those enjoyed by the decedent. ¶3 The majority's need to characterize the wrongful death action as either wholly or partially derivative is a distinction without difference. Our case law has long provided that the rights of the beneficiaries are derivative under the wrongful death statutes and, as such, the beneficiaries should be bound by the decedent's agreement to arbitrate. Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298. ¶4 The majority points out that the Oklahoma Constitution "provides that the right of action to recover damages for injuries resulting in death shall never be abrogated." I agree. Enforcement of the parties' arbitration agreement in this matter in no way abrogates the right to recover damages, it merely changes the forum in which the case is heard. The decedent's daughter, as the authorized legal representative by virtue of a Durable Power of Attorney, signed a three page arbitration agreement, which was contained within the decedent's admission agreement with Appellant. The validity of this agreement has not been challenged by the beneficiaries on appeal. Because I believe the decedent would be required to arbitrate any claims she may have had against the nursing home prior to her death, her beneficiaries should be compelled to do the same pursuant to the terms of the binding arbitration agreement.1 Accordingly, I respectfully dissent. FOOTNOTES 1 Significantly, the United States Supreme Court has ruled in favor of the enforceability of an arbitration agreement even when an existing state law, much like the Nursing Home Act in this case, prohibits its enforcement. See Marmet Health Care Ctr., Inc. v. Brown, __ U.S. __, 132 S. Ct. 1201, 182 L. Ed. 2d 42 (2012)(per curiam). In Marmet, the Court upheld an arbitration agreement between a West Virginia nursing home and its resident even though West Virginia law prohibited the enforcement of arbitration agreements in nursing home residential contracts, citing the preemptive force of the Federal Arbitration Act, 9 U.S.C. § 2.

4e317c1e-8e26-43a4-954e-eac56b548fd1

In re Adoption of K.P.M.A.

oklahoma

Oklahoma Supreme Court

IN RE ADOPTION OF K.P.M.A.2014 OK 85Case Number: 111905Decided: 10/14/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE ADOPTION OF K.P.M.A.: MARSHALL LEE ANDREWS and TONI MICHELLE ANDREWS, Petitioners/Appellees, v. BILLY McCALL, Respondent/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III, ON APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, STATE OF OKLAHOMA, HONORABLE ERIN L. OQUIN ¶0 Natural father of minor child K.P.M.A. sought review of the trial court's termination of his parental rights on the grounds provided within 10 O.S. 2011 § 7505-4.2. The Court of Civil Appeals, Division III, affirmed. This Court granted certiorari and determines that termination of the natural father's parental rights was improper because the natural father's due process rights were violated and the termination of the natural father's parental rights was not supported by clear and convincing evidence. COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Rebecca A. Murphy and David G. Francy, Patterson Law Firm, Tulsa, OK, for Petitioners/Appellees. Gregory J. Denney, Gregory J. Denney & Associates, P.C., Tulsa, OK, for Respondent/Appellant. COMBS, J: ¶1 This cause concerns the termination of parental rights of Respondent/Appellant Billy McCall (Father) to the minor child K.P.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) on June 21, 2012. Prospective adoptive parents, Petitioners/Appellees Marshall Lee Andrews and Toni Michelle Andrews (Appellees), have had physical custody of the child since she was released from the hospital after birth. The questions presented are: 1) whether Father's due process rights were violated; 2) whether Father received ineffective assistance of counsel during the termination proceedings; and 3) whether the trial court's determination was supported by clear and convincing evidence. I. FACTS AND PROCEDURAL HISTORY ¶2 Appellees filed a Petition for Termination of Parental Rights of Natural Parents on June 27, 2012, and a Petition for Adoption on August 14, 2012. Mother voluntarily relinquished her parental rights on August 14, 2012, and is not a party to this appeal. Mother named Father as the putative father1 of the child, and notice was sent to Father pursuant to 10 O.S. 2011 § 7505-4.1(C). Father filed a Response to Petition for Adoption and Petition for Termination of Natural Father in which he: 1) claimed paternity of the child; 2) stated he first learned of Mother's pregnancy and the birth of the child when he was served a summons in a guardianship proceeding for the child in Rogers County, Oklahoma (PG-2012-51); and 3) claimed he visited the child for several months after birth and also contributed support money for the child to Appellants in the amount of $250.00 per month after the child's birth. ¶3 The trial court held a hearing on the motion to terminate Father's parental rights on May 22, 2013. The record indicates that Mother and Father met on July 4, 2011, and engaged in sexual intercourse several times over the following months, beginning in August of 2011. Father testified that though they were friends, they were never in a romantic relationship. The record indicates that the last sexual encounter between Father and Mother occurred sometime in either September or October of 2011, and Father testified that he made no attempt to contact mother after that event. ¶4 The only apparent meeting between Father and Mother between their last sexual encounter and the birth of the child occurred in December of 2011, when Mother allegedly came to Father's workplace to see him. Mother did not mention pregnancy or the possibility of pregnancy and Father also did not enquire as to whether Mother was or might be pregnant. ¶5 It is evident from the record that at some point prior to the birth of the child Mother sent Father a message via Facebook informing him that she was pregnant and planning to give the child up for adoption. What is not clear from the record is exactly when Father received this message. Father testified that at some point in July of 2012 he attempted to contact Mother by Facebook, and in the process of doing so noticed for the first time the message Mother sent informing him of her pregnancy. Father testified he did not know how old the message was when he read it. Father later testified during cross examination that he first found out about the child's existence seven days after birth, June 21, 2012. ¶6 The trial court refused to allow any testimony from Father concerning his participation in guardianship proceedings concerning the child. Relying in part on this Court's decision in Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, the trial court determined that when Father actually found out about the pregnancy and birth of the child was irrelevant, as the burden was on Father to determine if he might have fathered a child and to exercise his parental rights pursuant to 10 O.S. 2011 § 7505-4.2(C). At the conclusion of Father's testimony, Mother moved for a directed verdict to terminate Father's parental rights. Father did not object or respond to the motion. The trial court sustained the motion for a directed verdict. ¶7 Father retained new appellate counsel and filed a Petition in Error on June 24, 2013. Father included with his Petition in Error a signed and certified order of the trial court terminating his parental rights that was filed on June 21, 2013. This order does not appear elsewhere in the record and Appellees assert the order was never sent to the parties and that proof of service was requested but never provided. Appellees assert that because Father's order was never provided to the other parties, a second order was drafted and circulated among the parties that attended the termination hearing, was signed and then filed on August 5, 2013. This order is also not included anywhere in the record on appeal. Appellees further claim they received no notice of the appeal until January 13, 2014, after this Court issued an order determining that Appellees' answer brief had not been timely filed pursuant to Oklahoma Supreme Court Rule 1.10(c)(3). Appellees filed their answer brief on January 21, 2014, but objected to their lack of notice.2 ¶8 On appeal, Father asserted several errors including improper notice and ineffective assistance of counsel. Father also challenged the trial court's decision to limit his testimony concerning his attempts to exercise parental rights prior to service of the adoption proceedings. In an unpublished opinion filed on April 11, 2014, the Court of Civil Appeals affirmed the trial court's termination of Father's parental rights. The Court of Civil Appeals determined that Father waived his right to challenge the validity of service of process by reserving an additional twenty (20) days in which to answer pursuant to 12 O.S. 2011 §2012(A)(1)(b). The Court also determined that the application to terminate Father's parental rights was sufficient to put Father on notice of the grounds for termination. ¶9 The Court of Civil Appeals agreed with the trial court's reasoning that Father's actions after the birth of the child were irrelevant, as Father's testimony showed that mother informed him of the pregnancy and plans for adoption while she was still pregnant and Father did nothing. The Court of Civil Appeals apparently took for granted that Mother's attempt to contact Father via Facebook constituted informing Father, and appears to ignore the fact that Father had asserted since the start of these proceedings that he did not see the message and did not know he had fathered a child until after the birth. The Court of Civil Appeals determined: Mother specifically informed Father she was pregnant at some point later during the course of her pregnancy, clearly triggering Father's obligation to provide support. Father simply failed to act on that information as the statute requires of a putative father intent on protecting his parental rights. Unpublished Opinion of the Oklahoma Court of Civil Appeals, Division III, ¶14 (April 11, 2014). ¶10 The Court of Civil Appeals also rejected Father's ineffective assistance of counsel argument. The Court of Civil Appeals determined that Father was required to show both the attorney's performance was deficient and that it prejudiced his case, and at the very least Father failed to meet the latter requirement, as Father's own testimony was that Mother informed him of the pregnancy while she was pregnant and his own testimony confirmed he failed to assert his parental rights by contributing to Mother's support as required by 10 O.S. 2011 § 7505-4.2(C)(1). ¶11 Father filed a Petition for Certiorari on May 1, 2014, asserting that the Court of Civil Appeals erred by wrongly construing the evidence to read that Father knew of the pregnancy before birth, simply because Mother allegedly notified him of it by Facebook. Further, father also argues his procedural due process rights protected by U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, §7 have been violated because the statutes place the burden of discovering the pregnancy on Father, and he was not allowed the opportunity to present evidence regarding steps he took to protect his parental rights after he learned of the child's existence. Finally, Father reasserts that he received ineffective assistance of counsel. This Court granted Father's Petition for Certiorari on June 30, 2014, and the cause was assigned to this office on July 1, 2014. II. STANDARDS OF REVIEW ¶12 Whether an individual's procedural due process rights have been violated is a question of constitutional fact which this Court reviews de novo. Pierce v. State ex rel. Dept. of Public Safety, 2014 OK 37, ¶7, 327 P.3d 530; In re A.M. & R.W., 2000 OK 82, ¶6, 13 P.3d 484. De novo review requires an independent, non-deferential re-examination of another tribunal's legal rulings. Pierce, 2014 OK 37, ¶7; In re A.M., 2000 OK 82, ¶6; Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, n. 1, 932 P.2d 1100. ¶13 In examining whether there is sufficient evidence to support an order terminating parental rights, this Court will review the record for clear and convincing evidence in support of the decision to terminate. In re C.D.P.F., 2010 OK 81, ¶6, 243 P.3d 21; In re S.B.C., 2002 OK 83, ¶¶5-7, 64 P.3d 1080. This Court must canvass the record to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re C.D.P.F., 2010 OK 81, ¶6; In re S.B.C., 2002 OK 83, ¶6. Our appellate review does not require a re-weighing of the evidence presented at trial. In re C.D.P.F., 2010 OK 81, ¶6. III. ANALYSIS ¶14 Proceedings to terminate parental rights incident to adoption are governed by the Oklahoma Adoption Code, found within 10 O.S. §7501-1.1 et seq. Title 10 O.S. 2011 § 7503-2.1 governs who may consent to the adoption of a minor child and provides in pertinent part: A. A minor may be adopted when there has been filed written consent to adoption or a permanent relinquishment for adoption executed by: 1. Both parents of the minor; 2. One parent of the minor, alone, if: a. the other parent is dead, b. the parental rights of the other parent have been terminated, or c. the consent of the other parent is otherwise not required pursuant to Section 7505-4.2 of this title; The requirements for preadoption termination of the parental rights of a putative father or parent of a child are set out within 10 O.S. 2011 § 7505-2.1. Title 10 O.S. 2011 § 7505-2.1(A) (1) provides in pertinent part: [p]rior to the filing of a petition for adoption, a child-placing agency, attorney, or prospective adoptive parent to whom a parent having legal custody has executed a consent to adoption or has permanently relinquished a minor born out of wedlock may file a petition for the termination of the parental rights of a putative father or a parent of the child. Title 10 O.S. 2011 § 7505-2.1(D) further provides, in pertinent part: D. At the hearing on the petition to terminate parental rights brought pursuant to this section, the court may, if it is in the best interest of the minor: 1. Accept a permanent relinquishment or consent to adoption executed by the putative father or parent of the minor pursuant to Sections 7503-2.1, 7503-2.3 and 7503-2.4 of this title; or 2. Terminate any parental rights which the putative father or parent may have upon any of the grounds provided in Section 7505-4.2 of this title for declaring a consent unnecessary. ¶15 Title 10 O.S. 2011 § 7505-4.2 sets out the possible exceptions to the requirement for parental consent. Specifically, 10 O.S. 2011 § 7505-4.2(C) & (D) provide: C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if: 1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or 2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent. The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent. D. In any case where a father or putative father of a minor born out of wedlock claims that, prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, he had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice. (Emphasis Added). ¶16 The burden rests on the party who seeks adoption without parental consent to show why consent may be dispensed with. Steltzlen v. Fritz, 2006 OK 20, ¶12, 134 P.3d 141; In re Adoption of C.M.G., 1982 OK 156, 656 P.2d 262. The standard of proof necessary to establish any of the grounds to permit adoption without consent, or for termination of parental rights is clear and convincing evidence. Steltzlen, 2006 OK 20, ¶12; In re Darren Todd. H., 1980 OK 119, ¶10, 615 P.2d 287. A. Pursuant to U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, §7, Father possessed a constitutionally-protected opportunity interest in his ability to develop a relationship with his child that incorporated a right to notice of the child's existence. ¶17 Both the United States Constitution and the Oklahoma Constitution provide that no person shall be deprived of life, liberty or property without due process of law. U.S. Const. amend. XIV, § 1; Okla. Const., art. 2, §7.3 In determining whether an individual has been denied procedural due process this Court engages in a two-step inquiry. First, this Court asks whether the individual possessed a protected interest to which due process protection applies and if so, whether the individual was afforded an appropriate level of process. Thompson v. State ex rel. Bd. of Trustees of Oklahoma Public Employee Retirement System, 2011 OK 89, ¶16, 264 P.3d 1251; In re A.M., 2000 OK 82, ¶7. ¶18 The first prong of this Court's inquiry must focus on the nature of Father's protected interest. Generally, parents have a fundamental right to raise their own children, and this right is protected by the United States and Oklahoma Constitutions. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶8, 264 P.3d 1258; Kelley v. Kelley, 2007 OK 100, ¶8, 175 P.3d 400. If, for whatever reason, a child's parents are unable to care for the child, adoption is a viable alternative. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶8. The importance of the right to consent to an adoption has been recognized as an important right in and of itself. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶8; Steltzlen v. Fritz, 2006 OK 20, ¶12,134 P.3d 141; Merrell v. Merrell, 1985 OK 107, ¶7, 712 P.2d 35. The law presumes that consent of a child's natural parents is necessary before an adoption may be effected. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶8; Steltzlen, 2006 OK 20, ¶12; In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d 802, cert. denied 535 U.S. 1054 (2002). However, the consent of only one natural parent and not the other is acceptable in certain situations. In re Adoption of Baby Boy K.B., 2011 OK 94, ¶8. ¶19 In the seminal case of Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), the United States Supreme Court considered the floor of due process protection afforded by the United States Constitution to natural fathers seeking to exercise or protect their parental rights. The Court noted that there is a significant difference between a developed parent-child relationship, and a potential relationship such as the one a natural father might develop with a child born out of wedlock. Lehr, 463 U.S. at 261. The Court stated: [w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban, 441 U.S., at 392, 99 S.Ct., at 1768, his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he "act[s] as a father toward his children." Id., at 389, n. 7, 99 S.Ct., at 1766, n. 7. But the mere existence of a biological link does not merit equivalent constitutional protection. Lehr, 463 U.S. at 261. The Court went on to characterize the nature of the natural father's interest as an opportunity interest: The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie. Lehr, 463 U.S. at 261 (footnote omitted). The Court in Lehr was therefore concerned with whether the statutory scheme at issue in that cause, New York's, adequately protected the father's opportunity to form such a relationship. ¶20 This Court's decision In re Termination of Parental Rights of Biological Parents of Baby Boy W., 1999 OK 74, 988 P.2d 1270, applied the logic of Lehr to a cause involving the termination of a natural father's parental rights under Oklahoma's statutory scheme. In Baby Boy W., the natural father and mother went their separate ways after a relationship they had as university students. The natural father never inquired as to whether he had fathered a child, and neither party contacted the other despite knowledge of how to do so and knowledge of each other's whereabouts. Baby Boy W., 1999 OK 74, ¶4. When the mother found out she was pregnant she contacted an adoption agency and told them natural father was someone she met at a college party and she did not know his last name. Baby Boy W., 1999 OK 74, ¶5. A few days before the child's birth, the mother informed the agency of the natural father's full name and the agency advised the natural father of the hearing to terminate his parental rights. Baby Boy W., 1999 OK 74, ¶7. This was the first time the natural father knew he had fathered a child. The trial court granted the natural father's request for summary judgment and determined his consent was required for the adoption, and the agency appealed. Baby Boy W., 1999 OK 74, ¶8. ¶21 This Court agreed, holding that the natural father was denied the chance to grasp his paternal opportunity interest in contravention of due process. Baby Boy W., 1999 OK 74, ¶2. This Court stated: [father's] conduct was sufficient considering that Natural Mother failed to provide any information to him concerning her pregnancy. After Natural Mother ended the relationship with Natural Father in January, 1997, she knew how to make contact with him, but she never informed him that he was a father. Baby Boy W., 1999 OK 74, ¶15. This Court unambiguously determined that the initial duty to inform the natural father of the pregnancy rested with the mother: [u]nder the Due Process Clause, Natural Father had a right to notice of the fact that Natural Mother was pregnant and had given birth to his child. The duty to inform him rested initially with Natural Mother and later with the Agency. Both failed to inform him despite the relative ease with which this could have been accomplished. In this regard, the Agency was no less to blame than Natural Mother in denying Natural Father notice of the child's existence. Baby Boy W., 1999 OK 74, ¶16 (emphasis added). Finally, this Court declared: [n]otice and opportunity lie at the heart of due process. Natural Father was deprived of notice of the pregnancy and the birth of his child and thus the chance to grasp his parental opportunity interest in his child. Under these circumstances, his parental rights cannot be terminated and his consent is necessary for adoption. Baby Boy W., 1999 OK 74, ¶19. ¶22 The action in Baby Boy W. was brought a few days before significant changes made by the Legislature to the Oklahoma Adoption Code became effective. Baby Boy W., 1999 OK 74, n. 2.4 Appellees assert that these changes collectively emphasize the duty of any natural father to attempt to discover if he has fathered a child. Amongst these changes, specific purposes for the Oklahoma Adoption Code were added and codified at 10 O.S. Supp. 1998 § 7501-1.2. In pertinent part, 10 O.S. 2011 § 7501-1.2(A) provides: [t]he purpose of the Oklahoma Adoption Code is to: .. 5. Affirm the duty of a male person who has sexual relations with a female person outside of marriage to be aware that a pregnancy might occur; 6. Affirm the duty of the biological father of a child who is to be born or who is born outside of marriage to exercise his parental responsibilities for the child. This includes the duty to inform himself about the existence and needs of any such child and to exercise parental responsibilities toward that child even before birth; ¶23 Since Baby Boy W. was decided, the Legislature has also changed the statutory requirements for determining whether a natural father's consent is required for adoption of a child born out of wedlock. At the time the underlying action of Baby Boy W. was commenced, the relevant provision was 10 O.S. Supp. 1996 § 60.6 which provided in pertinent part: [a] child under eighteen (18) years of age cannot be adopted without the consent of its parents, if living, except that consent is not required from: .. 3. The father or putative father of a child born out of wedlock if: a. prior to the hearing provided for in Section 29.1 of this title, and having actual knowledge of the birth or impending birth of the child believed to be his child, he fails to acknowledge paternity of the child or to take any action to legally establish his claim to paternity of the child or to exercise parental rights or duties over the child, including failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy, or b. at the hearing provided for in Section 29.1 of this title: (1) he fails to prove that he is the father of the child, or (2) having established paternity, he fails to prove that he has exercised parental rights and duties toward the child unless he proves that prior to the receipt of notice he had been specifically denied knowledge of the child or denied the opportunity to exercise parental rights and duties toward the child. As used in this subparagraph, specific denial of knowledge of the child or denial of the opportunity to exercise parental rights and duties toward the child shall not include those instances where the father or putative father fails to prove to the satisfaction of the court that he made a sufficient attempt to discover if he had fathered the child or to exercise parental rights and duties toward the child prior to the receipt of notice, or c. he waives in writing his right to notice of the hearing provided for in Section 29.1 of this title, or d. he fails to appear at the hearing provided for in Section 29.1 of this title if all notice requirements continued in or pursuant to Section 1131 of this title have been met. The current relevant provision, found at 10 O.S. 2011 § 7505-4.2, provides in pertinent part: C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if: 1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or 2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent. The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent. ¶24 Importantly, however, the defense Father asserted at the hearing to terminate his parental rights, based on specific denial of knowledge of the child and currently located at 10 O.S. 2011 § 7505-4.2(D), already existed in the statutes when Baby Boy W. was decided. At the time the cause of action in Baby Boy W. was commenced, the relevant provision was 10 O.S. Supp. 1996 § 60.6(3)(b)(2). This provision provided that consent to adoption from the father of a child born out of wedlock was not needed if, at the hearing: having established paternity, he fails to prove that he has exercised parental rights and duties toward the child unless he proves that prior to the receipt of notice he had been specifically denied knowledge of the child or denied the opportunity to exercise parental rights and duties toward the child. As used in this subparagraph, specific denial of knowledge of the child or denial of the opportunity to exercise parental rights and duties toward the child shall not include those instances where the father or putative father fails to prove to the satisfaction of the court that he made a sufficient attempt to discover if he had fathered the child or to exercise parental rights and duties toward the child prior to the receipt of notice. 10 O.S. Supp. 1996 § 60.6(3)(b)(2); Baby Boy W., 1999 OK 74, ¶14. ¶25 In Baby Boy W., this Court noted that when the Oklahoma Adoption Code was created, this provision was recodified in 10 O.S. § 7505-4.2. Baby Boy W., 1999 OK 74, ¶14. In its current incarnation, 10 O.S. 2011 § 7505-4.2(D) provides: [i]n any case where a father or putative father of a minor born out of wedlock claims that, prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, he had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice. An examination of the language of this provision indicates that it has remained substantially the same. ¶26 This Court's holding in Baby Boy W. indicates that because of due process concerns and the importance of Father being given a chance to exercise his opportunity interest, the requirements of 10 O.S. 2011 § 7505-4.2(D) are met if the mother fails to inform a natural father of her pregnancy. That duty initially rests on her shoulders. This Court stated of the defense now found at 10 O.S. §7505-4.2(D): This is the standard by which Natural Father's actions must be measured and that standard has been met .. His conduct was sufficient considering that Natural Mother failed to provide any information to him concerning her pregnancy. Baby Boy W., 1999 OK 74, ¶15. ¶27 In Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, this Court revisited whether a natural father's consent was necessary for a child's adoption. In Steltzlen, this Court determined that the trial court did not abuse its discretion when it ruled that a child born out of wedlock was not eligible for adoption without the natural father's consent. 2006 OK 20, ¶1. The natural father and mother in Steltzlen had a brief sexual relationship while they worked together. 2006 OK 20, ¶3. Shortly after their last sexual contact, they ceased working together, and the natural father's next contact with the mother was when they ran into each other by chance when she was seven months pregnant. Steltzlen, 2006 OK 20, ¶4. The mother indicated it was possible that he might be the father, and the natural father offered to take a DNA test, which the mother declined. Steltzlen, 2006 OK 20, ¶4. Because of this and because he had no further contact from mother, the natural father believed he was not the father of the child. Steltzlen, 2006 OK 20, ¶4. ¶28 The natural father in Steltzlen only discovered he was the father a couple of years after the birth, when, similar to this cause, he received notice of guardianship proceedings. 2006 OK 20, ¶7. The natural father immediately became involved, paternity was established by DNA testing, and he contested the petition for adoption of the child without his consent. Steltzlen, 2006 OK 20, ¶10. The trial court denied the adoption petition and the prospective adoptive parents appealed. ¶29 This Court reiterated its decision in Baby Boy W., and stressed the importance of the natural father receiving notification. Steltzlen, 2006 OK 20, ¶10. Specifically, this Court stated: [i]t is not disputed that after the chance meeting at the thrift store, mother did nothing further to contact the father, to let him know that the child had been born or that he was the father of the child. Mother essentially turned the custody and care of [the child] over to the petitioner and her daughter. It is not disputed that neither the petitioner nor [mother's roommate], though they had assumed the care and responsibility for raising the child, attempted to contact the father until they sought to become [the child's] guardians. In In re Biological Parents of Baby Boy W, 1999 OK 74, 988 P.2d 1270, we said that under the due process clause, the father had a right to notice of the fact that the mother was pregnant and had given birth to his child. The duty to inform the father rests initially with the mother, and later with the adoption agency, but both failed to inform him, despite the relative ease with which this could have been accomplished. 988 P.2d at 1274. We said that the adoption agency in that case was no less to blame than the mother in denying the father notice of the child's existence. Id. We affirmed the trial court's determination that the natural father did everything he reasonably could have done under the circumstances and that his conduct was sufficient considering that the natural mother failed to provide any information to him concerning her pregnancy. We held that the natural Mother's actions constituted specific denial of knowledge of the child and offered a complete defense to the termination of father's parental rights. Steltzlen, 2006 OK 20, ¶16. ¶30 A core element to this Court's decisions in both Steltzlen and Baby Boy W. is that a distinction exists between: 1) causes where the natural fathers of children born out of wedlock failed to seize their parental opportunity interest when the opportunity was presented to do so5; and 2) causes involving a father's allegation that he was denied the chance to seize that opportunity interest because he never knew about the child. Steltzlen, 2006 OK 20, ¶17. Stated another way, Lehr held that natural fathers possess a constitutionally-protected opportunity interest in the ability to develop a relationship with their children born out of wedlock that they must choose to pursue if they desire legal protection of that interest. Lehr, 463 U.S. at 262. Pursuant to Baby Boy W. and Steltzlen, this Court has determined that natural fathers in Oklahoma are denied due process when their parental rights are terminated despite them never being given a chance to pursue their opportunity interest because they were never given notice of the child's existence. See Steltzlen, 2006 OK 20, ¶16-17; Baby Boy W., 1999 OK 74, ¶2. ¶31 Though in Steltzlen this Court noted the purposes added to the Oklahoma Adoption Code at 10 O.S. 2011 § 7501-1.2, this Court did not deviate from its determination in Baby Boy W. that the initial burden to notify the natural father rested with the mother because of due process concerns. Under the specific facts of Steltzlen, the natural father discovered the pregnancy when he ran into the mother at a thrift store while she was seven months pregnant. She told him at that time the child might be the product of their sexual relationship, and he offered to take a DNA test, which she refused. Steltzlen, 2006 OK 20, ¶4. The Court reiterated its holding in Baby Boy W., that under the due process clause, father had a right to notice of the fact that the mother was pregnant and had given birth to his child. Steltzlen, 2006 OK 20, ¶16 (citing Baby Boy W., 1999 OK 74). ¶32 More recently, in In re Adoption of Baby Boy K.B., 2011 OK 94, 264 P.3d 1258, this Court once again referenced its decision in Baby Boy W. and specifically stressed the importance of a natural father being given the chance to seize his opportunity interest by being notified of the existence of the child. Baby Boy K.B., 2011 OK 94, ¶8. These decisions are all in accord that, in Oklahoma, the natural father of a child born out of wedlock is entitled to notice of the existence of the child so that the natural father has a chance to exercise his opportunity interest in developing a relationship with the child.6 B. Notice provided only via Facebook does not satisfy the notice requirements of U.S. Const. amend. XIV, § 1 and Okla. Const., art. 2, §7. ¶33 Having established that Father was constitutionally entitled to notice of the existence of the child before his rights could be terminated for failure to exercise his opportunity interest, this Court must now determine whether Father received that notice. In other words, was Father afforded appropriate due process. In re A.M. & R.W., 2000 OK 82, ¶7, 13 P.3d 484.7 Notice and opportunity lie at the heart of due process. Baby Boy W., 1999 OK 74, ¶19. See Shamblin v. Beasley, 1998 OK 88, n. 32, 967 P.2d 1200; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Appellees assert that Father was provided notice of the pregnancy by Mother via Facebook, though Father claims he did not see the message until after the child's birth. ¶34 The classic statement of constitutionally adequate notice is that which is reasonably calculated, under the circumstances, to inform interested persons of the pending litigation and to afford them an opportunity to advocate their interest in the cause. Booth v. McKnight, 2003 OK 49, ¶20, 70 P.3d 855. This statement has its origin in the United States Supreme Court Case Mullane v. Central Hanover Bank & Trust Co, 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). In Mullane, the Court determined that when notice is a person's due, process which is a mere gesture is not due process. 339 U.S. at 315. The Court further stated: The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, with Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 446, 57 A.L.R. 1230, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Mullane, 339 U.S. at 315. ¶35 This Court does not believe that attempts to provide notice via Facebook comport with the requirements of due process. While the adequacy of Facebook as a means of providing notice in a due process context is an issue of first impression in Oklahoma, to date only one federal court--of at least three that have considered the issue--has allowed service of process via Facebook and even then only as a supplementary means of providing notice.8 ¶36 Nothing in the record of this cause indicates that more direct contact with Father was impossible so that Mother was required to rely upon an indirect method such as Facebook to notify him of her pregnancy. Indeed, the record indicates she came to Father's workplace to see him roughly six weeks after their last sexual encounter. There is no indication in the record she knew she was pregnant at the time, and it is quite possible that she did not know, however it does demonstrate she knew where to find Father to talk to him in person and had no qualms about doing so. The record does not indicate she made any effort to visit Father again after this date, while he was still employed, to tell him of the pregnancy. The record also does not indicate Mother made any other reasonable effort to contact Father directly and notify him. Mother was present at the hearing due to Father's subpoena, and might have been able to provide further detail regarding her efforts to contact father, were it not for the trial court's erroneous decision to grant Appellees' motion for a directed verdict. ¶37 Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it regularly or have it configured in such a way as to provide notification of unread messages by some other means. This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected. Booth, 2003 OK 49, ¶20; Mullane, 339 U.S. at 315. It is, rather, a mere gesture. Mullane, 339 U.S. at 315. C. Termination of Father's parental rights was not supported by clear and convincing evidence. ¶38 Because of the truncated hearing on Appellee's petition to terminate Father's parental rights, there is a dearth of evidence in the record. It cannot be ascertained with certainty when Father actually learned he had fathered a child. It cannot be fully ascertained what actions Father may have taken to exercise his opportunity interest to develop a relationship with the child and exercise his parental rights after he knew of the child's existence. Pursuant to 10 O.S. 2011 § 7505-2.1(D), in order to terminate Father's parental rights the trial court was required to determine that clear and convincing evidence indicated: 1) that termination of Father's parental rights was in the best interests of the child; and 2) termination under one of the grounds provided in 10 O.S. 2011 § 7505-4.2 was appropriate. ¶39 There is nothing in the record before this Court to indicate the trial court ever made a determination that termination of Father's parental rights was in the best interest of the child, pursuant to 10 O.S. 2011 § 7505-2.1(D). Further, the record contains essentially no information concerning Father's attempts to exercise parental rights and duties towards the child after he received the constitutionally-required notice of the child's existence. The grounds for termination provided for in 10 O.S. 2011 § 7505-4.2(C) require consideration of more factors than just the extent of Father's support of the mother during pregnancy. See In re Adoption of Baby Boy K.B., 2011 OK 94, ¶13, 264 P.3d 1258. Because of the dearth of evidence in the record, this Court cannot say that clear and convincing evidence is present in the record such that a trier of fact could reasonably form a firm belief or conviction that the grounds for termination were proven. In re C.D.P.F., 2010 OK 81, ¶6; In re S.B.C., 2002 OK 83, ¶6. Rather, because it made an erroneous legal conclusion regarding Father's due process rights, the trial court prematurely cut off the gathering of evidence. IV. CONCLUSION ¶40 Pursuant to this Court's decision in Baby Boy W. and its progeny, Father had a right, under the Due Process Clause, to notice of the fact that Mother was pregnant with his child. 1999 OK 74, ¶16 & ¶19. See Steltzlen, 2006 OK 20, ¶16; Baby Boy K.B., 2011 OK 94, ¶8. Mother allegedly informing Father of her pregnancy via a Facebook message was insufficient to satisfy the notice requirement of due process. Booth, 2003 OK 49, ¶20; Mullane, 339 U.S. at 315. ¶41 The trial court erred as a matter of law by incorrectly determining that it made no difference when and if Father received notice of the pregnancy because the obligation to discover if he fathered a child was placed squarely on his shoulders. That determination was not in keeping with prior controlling decisions of this Court. Mother's failure to properly notify father of the pregnancy at any point constituted specific denial of knowledge of the child within the meaning of the language of 10 O.S. 2011 § 7505-4.2(D). Father was deprived of notice of the pregnancy and the birth of his child and thus the chance to grasp his parental opportunity interest in his child. Baby Boy W., 1999 OK 74, ¶19. Under these circumstances, the termination of Father's parental rights pursuant to 10 O.S. 2011 § 7505-4.2(C), based on his conduct when there is no clear and convincing evidence he had knowledge of the pregnancy or birth of the child, violated Father's right to due process under the Oklahoma and United States Constitutions. ¶42 Given the state of the record, there is not clear and convincing evidence to support a determination that termination of Father's parental rights was in the best interests of the child and that termination of those rights was appropriate pursuant to 10 O.S. 2011 § 7505-4.2, in light of actions taken by Father after he learned of Mother's pregnancy and the child's existence. The trial court ruled on the termination of Father's parental rights prematurely by granting Appellees' Motion for a Directed Verdict, a ruling which was based upon an erroneous legal conclusion regarding Father's due process rights and the nature of his opportunity interest. This cause is hereby remanded to the trial court for proceedings consistent with this opinion. Given the state of the record and the fact that this cause is being remanded to the trial court, the Court does not address Father's claim of ineffective assistance of counsel. COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, and Combs, JJ., concur. Winchester (by separate writing), Taylor, and Gurich, JJ., dissent. FOOTNOTES 1 Title 10 O.S. 2011 § 7501-1.3 (12) provides: "Putative father" means the father of a minor born out of wedlock or a minor whose mother was married to another person at the time of the birth of the minor or within the ten (10) months prior to the birth of the minor and includes, but is not limited to, a man who has acknowledged or claims paternity of a minor, a man named by the mother of the minor to be the father of the minor, or any man who is alleged to have engaged in sexual intercourse with a woman during a possible time of conception. 2 A review of the record and filings reveals that Appellees' failure to receive notice of the appeal and appropriate documents is likely the result of an address change on the part of counsel for Appellees sometime prior to commencement of the appeal. Pursuant to 12 O.S. 2011 § 2005.2(E), counsel for Appellees had a duty to notify the district court and other parties of any address change. Title 12 O.S. 2011 § 2005.2 provides in pertinent part: D. ADDRESS OF RECORD. The address of record for any attorney or party appearing in a case pending in any district court shall be the last address provided to the court. The attorney or unrepresented party must, in all cases pending before the court involving the attorney or party, file with the court and serve upon all counsel and unrepresented parties a notice of a change of address. Any attorney or unrepresented party has the duty of maintaining a current address with the court. Service of notice to the address of record of counsel or an unrepresented party shall be considered valid service for all purposes, including dismissal of cases for failure to appear. E. NOTICE OF CHANGE OF ADDRESS. All attorneys and unrepresented parties shall give immediate notice to the court of a change of address by filing notice with the court clerk. If the attorney or unrepresented party has provided written consent to receive service by electronic means pursuant to subsection A of this section, or in another pleading, the attorney or party shall include a change of electronic mailing address as part of the notice required in this subsection. The notice of the change of address shall contain the same information required in the entry of appearance, shall be served on all parties, and a copy shall be provided to the assigned judge. If an attorney or an unrepresented party files an entry of appearance, the court will assume the correctness of the last address of record until a notice of change of address is received. Attorneys of record who change law firms shall notify the court clerk and the assigned judge of the status of representation of their clients, and shall immediately withdraw, when appropriate. On appeal, this same requirement is governed by Oklahoma Supreme Court Rule 1.5, 12 O.S. Supp. 2013, Ch. 15, App. 1, which provides in pertinent part: (c) Notice of Change of Address. All attorneys and parties representing themselves shall give immediate notice to the Clerk of the Supreme Court of a change of address, including email address, if applicable, using the form prescribed by Rule 1.301 Form No. 3. The notice of change of address shall be served on all parties. If an attorney or a party representing himself or herself files an entry of appearance, the Court will assume the correctness of the last address of record, as defined in section (d), or in the absence of such address change, the address stated in the entry of appearance until a notice of change of address is received. (d) Address of Record. The address of record, including email address, if applicable, for any attorney or party appearing in a case pending before the Supreme Court, Court of Civil Appeals, or Court of Tax Review, shall be the last address provided to the court. The attorney or party representing himself or herself must, in all cases pending before the court involving the attorney or party, file with the court and serve upon all counsel and parties representing themselves a notice of a change of address. An address change made pursuant to this rule shall apply to all cases pending before the Supreme Court, Court of Civil Appeals, and the Court of Tax Review. The attorney or party representing himself or herself has the duty of maintaining a current address with the courts. The original Petition for Termination of Parental Rights of Natural Parents filed by Appellees, and multiple subsequent filings, show an address for counsel of 1112 S. Boston Ave., Rogers, OK 74119. The first indication in the record that counsel for Appellees address was no longer this location is Appellees' Answer Brief to Appellant's Petition in Error, where Appellees first complained they were not notified of the appeal. No actual attempt to note a change of address appears in the filings until Appellees filed a Motion for Extension of Time to respond to Appellant's Petition for Certiorari because it was sent to the incorrect prior address. The Court would like to take this opportunity to stress that it is counsel's obligation to notify the courts and other parties of any change of address in order to prevent this sort of confusion from occurring. 3 Oklahoma's due process clause has a definitional sweep that is coextensive with its federal counterpart. Gladstone v. Bartlesville Indep. School Dist. No. 30, 2003 OK 30, n. 16, 66 P.3d 442; Fair School Finance Council of Oklahoma, Inc. v. State, 1987 OK 114, n. 48, 746 P.2d 1135. However, the States, in exercise of their sovereign power, may afford more expansive individual rights and liberties than those conferred by the United States Constitution. Turner v. City of Lawton, 1986 OK 51, ¶10, 733 P.2d 375. This Court stated in Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, n. 20, 251 P.3d 741 (quoting Alva State Bank and Trust Co. v. Dayton, 1988 OK 44, ¶7, 755 P.2d 635 (Kauger, J., concurring specially)): "[T]he people of this state are governed by the Oklahoma Constitution, and when it grants a right or provides a principle of law or procedure beyond the protections supplied by the federal constitution, it is the final authority.This is so even if the state constitutional provision is similar to the federal constitution. [emphasis added]. The United States Constitution provides a floor of constitutional rights-state constitutions provide the ceiling. [emphasis in original]. This Court's holdings with regard to state constitutional questions are based on Oklahoma law, which provides bona fide, separate, adequate and independent grounds for our decision. Daffin, 2011 OK 22, n. 21; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶51, 958 P.2d 128; Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). 4 1997 Okla. Sess. Laws Ch. 366 (H.B. 1241) renamed the Oklahoma Adoption Act to the Oklahoma Adoption Code, renumbered the Code, and added or modified many provisions. The effective date for most of those changes was November 1, 1997. 5 See, e.g., White v. Adoption of Baby Boy D., 2000 OK 44, 10 P.3d 212 (Petitioner was aware of pregnancy and birth of his child but "wholly failed to grasp even one of the many opportunities he had to establish [the] parental relationship."). 6 One jurist on the New York Court of Appeals explained the logic inherent in this approach: The man who has not been told of the pregnancy has few, if any, avenues of recourse. Indeed, although the majority has not hesitated to assign blame to petitioner because of what it terms his "inaction," it has not even begun to identify just what it is that petitioner might have done to fulfill his responsibilities in these circumstances. Does the majority mean to suggest that all men who engage in sexual intercourse with women to whom they are not married must remain in regular contact with them even after their relationships have terminated in order to ascertain whether there has been a pregnancy? Must they also make inquiries in the community or pursue alternative sources of information in order to definitively rule out the possibility that the relationship may have produced a child? . . . Moreover, a rule that requires men to foist continued contact on women with whom they are no longer involved overlooks women's interest in preserving their own privacy after the relationship has been terminated. Robert O. v. Russell K., 604 N.E.2d 99, 106 (N.Y. 1992) (TITONE, J., concurring). 7 It is necessary to point out that Father is not, on appeal, making a due process challenge in connection to the termination hearing itself. He was properly served and given the opportunity to appear at the hearing. Rather, he is asserting that his procedural due process rights were violated because the state stripped him of a protected opportunity interest that he never had the opportunity to exercise, because he did not have notice of it. In Baby Boy W., 2000 OK 82, ¶19, this Court determined that notice of the pregnancy was an inherent part of this protected opportunity interest. 8 In F.T.C. v. PCCare247 Inc., No. 12 Civ. 7189(PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013), the United States District Court for the Southern District of New York authorized, for the sake of thoroughness, service of process via Facebook in addition to email when all attempts to accomplish traditional service of process had failed. PCCare247 Inc., 2013 WL 841037, at *5. The unreliability of this method is easily evident from the court's description: [t]he FTC would send a Facebook message, which is not unlike an email, to the Facebook account of each individual defendant, attaching the relevant documents. Defendants would be able to view these messages when they next log on to their Facebook accounts (and, depending on their settings, might even receive email alerts upon receipt of such messages). . . . To be sure, if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process. PCCare247 Inc., 2013 WL 841037, at *5. The Court readily acknowledged that service of Facebook was a relatively novel concept and that it was conceivable that the defendants would not in fact receive notice by that means, which is why it determined Facebook was only suitable as a supplementary form of service. PCCare247 Inc., 2013 WL 841037, at *5. Other federal courts have refused to go even so far as to allow Facebook as a supplementary means of satisfying the notice requirement of due process. See Joe Hand Promotions, Inc. v. Carrette, No. 12-2633-CM (D. Kan. July 9, 2013); Joe Hand Promotions, Inc. v. Stephen Shepard, No. 4:12cv1728 SNLJ (E.D. Mo. Aug. 12, 2013). While pronouncement of a federal law question by an inferior federal court is not binding on this Court, it is persuasive. Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶18, 90 P.3d 546; Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶30, 977 P.2d 1040. It is also instructive in providing guidance on similar state law questions. Mehdipour, 2004 OK 19, ¶18. See Payne v. Dewitt, 1999 OK 93, n. 6, 995 OK 1088. WINCHESTER, J., dissenting, with whom TAYLOR and GURICH, JJ. join: ¶1 Two conclusions by this Court appear to be unsupported and unsupportable by the record before this Court. I do not agree that the Father's due process rights were violated by the Mother's attempt to provide notice via Facebook. Nor do I agree that the judgment of the court was erroneous, given the facts that were uncontested and the statutes the trial court was obligated to follow. I. THE BALANCING OF RESPONSIBILITY ¶2 The majority opinion cites the specific changes to the Oklahoma Adoption Code, and quotes 10 O.S.2011, § 7501-1.2(A), which provides: "A. The Legislature of this state believes that every child should be raised in a secure, loving home and finds that adoption is the best way to provide a permanent family for a child whose biological parents are not able or willing to provide for the child's care or whose parents believe the child's best interest will be best served through adoption. The purpose of the Oklahoma Adoption Code is to: . . . . "5. Affirm the duty of a male person who has sexual relations with a female person outside of marriage to be aware that a pregnancy might occur; "6. Affirm the duty of the biological father of a child who is to be born or who is born outside of marriage to exercise his parental responsibilities for the child. This includes the duty to inform himself about the existence and needs of any such child and to exercise parental responsibilities toward that child even before birth. . . ." ¶3 The legislature has clearly pronounced its intent. The duty of the male who has sexual relations with a female is (1) to be aware that a pregnancy might occur and (2) to inform himself. He cannot complacently wait for the female to find him in the event of a pregnancy. In this case the Mother tried to inform the father. There was no evidence that he attempted to learn anything. After the legislature had made its intent known, the majority opinion still maintains that the responsibility of informing a father lies fully with the female. ¶4 The Father's testimony reveals that during the times they were having intercourse, the Mother was seventeen years old and he was twenty to twenty-one years old. He testified that he knew where she lived, knew her full name and had her telephone number. When asked, "What steps did you take to determine that she wasn't pregnant after you had intercourse the last time?" His answer was "None." He was also asked, "[D]id you ever attempt to contact her and she denied contact with you?" He answered, "No." He was asked how long it took for her to respond to him when he finally tried to contact her, he answered "within a day, maybe longer." No testimony indicates that knowledge about the Mother's pregnancy was kept from him. ¶5 At the conclusion of the testimony of the father, who was the only witness called to testify, the biological Mother's attorney moved for a directed verdict, which motion was joined by the petitioners. The court asked for a response from the other parties present, and received no objections. The court granted the motion, finding in support that the Father's own testimony proved he had failed prior to the child's birth to determine if a child was going to be born, and failed to support, according to his means, the Mother of the child through her living expenses, medical expenses, and maternity expenses. The court further found that the Father did not do anything to assert his rights as a father other than showing up for the guardianship. At that point the court found that the adoption should proceed without the consent of the Father and terminated his parental rights. ¶6 The transcript reveals that the trial court concluded the applicable law required the Father to inquire about whether the Mother had become pregnant. The judge and attorneys discussed 10 O.S.2011, § 7505-4.2(D) , which provides: D. In any case where a father or putative father of a minor born out of wedlock claims that, prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, he had been specifically denied knowledge of the minor or denied the opportunity to exercise parental rights and duties toward the minor, such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor or made sufficient attempts to exercise parental rights and duties toward the minor prior to the receipt of notice. No one argued that the Father was denied knowledge of the minor or denied an opportunity to exercise parental rights or duties. ¶7 Although the Father admits he had received notice of the child's birth on Facebook, he claims he did not see the notice until he tried to contact the Mother, on Facebook, regarding guardianship of the child. He testified he did not know how old the message was. Facebook has two methods of sending information. A message may be posted to an area that all "friends" on Facebook may view it, or it may be posted to a private area that is more like an email. Either way, all messages are dated. The transcript does not identify which method the Mother used. The Father admitted they were Facebook "friends" and that he used that method to contact her when he found out about the guardianship. He acknowledged that Facebook contained a message to him from the Mother that she was pregnant and that she wanted to place the baby for adoption. The text of the message as the Father recalls was "something about I'm pregnant, little girl, I'm putting her up for adoption." ¶8 Admitting the message was there, the Father either saw it and ignored it, or did not see it and wishes the trial court to conclude that the pregnancy was kept from the father. The majority opinion concludes that the "Mother allegedly informing Father of her pregnancy via a Facebook message was insufficient to satisfy the notice requirement of due process." There is no "allegation" of a Facebook message as the majority opinion states. The Father admits there was a message. Either he had actual notice or he had constructive notice. ¶9 If this Court wishes to hold, as a matter of law, that notice was withheld from him, then 10 O.S.2011, § 7505-4.2(D) applies and the Father should have attempted to discover if he had fathered a child. If he had notice, then the Father should have taken action then to support the Mother during the process of her pregnancy. Either way, the Father's action or inaction supports the trial court's decision to terminate the Father's parental rights. Whether or not he actually viewed that message is not a question of law, it is a question of fact. Because the trial court was the fact finder, the court had the authority to decide whether the Father viewed that notice before the baby was born. Further, we are required to give deference to the trial court's view of the evidence and the assessment of the veracity of the witnesses. ¶10 The trial court recognized the Father's duty, pursuant to statute, (1) to be aware that a pregnancy might occur and (2) to inform himself. By his own testimony, he could have informed himself by contacting the Mother, and did not even attempt to. The majority opinion does not declare unconstitutional the obligation placed by the legislature on the Father, yet the majority opinion returns the full burden to the Mother regarding notice. II. THE NOTICE REQUIREMENT ¶11 The majority opinion does not inform the biological mother precisely what notice is needed to satisfy this Court. The rule has been long accepted that, "Actual notice is the preferred method of satisfying due process requirements. . . ." In re Dana P. 1982 OK 149, ¶ 9, 656 P.2d 253, 255. The Facebook message was actual notice. The Father testified that Facebook was his method to contact the Mother after he learned of the guardianship and that he reached her within twenty-four hours. Why would Facebook be any less reliable than other forms of electronic communication? Does the Court require a face-to-face confrontation with witnesses? Face-to-face discussions can be denied; letters can remain unopened; and faxes can be lost. ¶12 Osprey L.L.C. v. Kelly-Moore Paint Co., 1999 OK 50, ¶ 15, 984 P.2d 194, 199, held, "The purpose of providing notice by personal delivery or registered mail is to insure the delivery of the notice, and to settle any dispute which might arise between the parties concerning whether the notice was received. A substituted method of notice which performs the same function and serves the same purpose as an authorized method of notice is not defective." In the Osprey case, a lessee sent a fax to confirm a desire to continue a lease for another five years. The renewal terms stated that notice may be delivered either personally or by depositing the same in United States mail, first class postage prepaid, registered or certified mail, return receipt requested. The lessor even denied receiving the fax, but this Court recognized an electronic record showing that the fax activity report and telephone company records confirmed that the fax was transmitted successfully and that it was sent to Osprey's correct facsimile number. Osprey, 1999 OK 50, ¶ 6, 984 P.2d at 196. Actual notice satisfies due process just as formally approved methods do. The record contains an admission from the Father that his Facebook account contained notice. He just claims he did not read it. ¶13 Oklahoma law recognizes the efficacy of electronic transactions where parties to electronic transactions have agreed to transact business through that method. Forty-seven states, the District of Columbia, Puerto Rico, and the Virgin Islands have adopted the Uniform Electronic Transactions Act (UETA). Oklahoma has codified this act as 12A O.S.2011, §§ 15-101 through 15-121. Three states, Illinois, New York and Washington, which have not adopted the UETA have statutes pertaining to electronic transactions. The UETA is found within the Uniform Commercial Code and applies to transactions. A transaction is defined as "an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs." The point is not whether the UETA applies to the case before the court; the relevance is that electronic transactions are deemed by all states to be dependable enough to bind parties in business, commercial and governmental affairs. ¶14 In addition, Facebook is a dependable method for communication, enough so that the Father admits that the mother and the Father chose to communicate through that method. What happened when he received service about the guardianship? The transcript says that when he initiated contact with the mother he did it through Facebook. There is no support for an argument that Facebook is less dependable as an actual notice than a fax, a letter or some form of email other than Facebook. Neither is there a sound argument that actual notice does not satisfy due process. ¶15 The trial court did not err as a matter of law by determining it made no difference when and if the Father received notice of the pregnancy if 10 O.S.2011, § 7505-4.2(D) means what it says, "such father or putative father must prove to the satisfaction of the court that he made sufficient attempts to discover if he had fathered a minor. . . ." The requirement certainly is placed squarely on his shoulders, and this Court has cited no authority to show why such a statute would be unconstitutional. As I have previously said, either the Father was told and failed to act or was intentionally not told and failed to show any attempt to learn of a pregnancy. The majority view states that "Mother's failure to properly notify father of the pregnancy at any point constituted specific denial of knowledge of the child within the meaning of 10 O.S.2011, § 7505-4.2(D)." If that is so, then the father had a duty to find out pursuant to the very statute cited. Leaving all the responsibility to the mother is an archaic view of parenthood. The Father does not claim he did not know that his actions could produce a child. He testified to more than one occasion of sexual intercourse. The fact that he did nothing to find out shows a lack of responsibility. ¶16 The Court of Civil Appeals properly affirmed the judgment of the trial court.    

de8b2a77-d52d-438f-a8bc-78d56e8e211b

Wood v. Mercedes-Benz of Oklahoma City

oklahoma

Oklahoma Supreme Court

WOOD v. MERCEDES-BENZ OF OKLAHOMA CITY2014 OK 68Case Number: 108555Decided: 07/16/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ERICA WOOD, Plaintiff-Appellant, v. MERCEDES-BENZ OF OKLAHOMA CITY, Defendant-Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA, HONORABLE DANIEL L. OWENS ¶0 Plaintiff brought suit against Mercedes-Benz of Oklahoma City for injuries she suffered after she slipped and fell on ice that had accumulated on sidewalks, pavement, and grass surrounding the Defendant's automobile dealership. The icy conditions were caused by Defendant's sprinkler system which activated during freezing temperatures. The trial court granted summary judgment in favor of the Defendant. The Court of Civil Appeals affirmed. Plaintiff petitioned this Court for review of the decision. We granted certiorari and conclude summary judgment was improper. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; MATTER REMANDED FOR FURTHER PROCEEDINGS Thomas K. Ventura, Law Offices of Daniel M. Davis, Oklahoma City, OK, for Plaintiff-Appellant Rodney Ramsey, Michael Gray, Ramsey and Gray, P.C., Oklahoma City, OK, for Defendant-Appellee GURICH, J. Facts & Procedural History ¶1 Erica Wood was employed by Ned's Catering, Inc. On March 8, 2008, Wood reported to Mercedes-Benz of Oklahoma City to assist with a catered event at the car dealer's facility. Upon arriving at the dealership, Wood drove around the parking lot searching for a place to park her vehicle. Wood noticed ice on the grass, pavement, and sidewalks surrounding the Mercedes-Benz facility. Wood testified in her deposition that "[t]he whole building was covered in ice, all the way around, all the sidewalks."1 Although the nighttime temperatures had been freezing, precipitation was not a factor in creating the icy conditions, and Wood did not encounter any ice on the roads while driving to the dealership. A sprinkler system, which had been serviced the day before, activated overnight, causing ice to cover surfaces throughout the entire property of the dealership. ¶2 After parking her car, Wood walked to the east entrance of the dealership. To reach the door, Wood had to cross grass and a sidewalk that were coated with ice. Wood was wearing common "food industry" non-slip shoes and claimed she was "very careful as she walked in." After entering the building, Wood was unable to locate her supervisor at Ned's Catering. She proceeded back outside to retrieve a cell phone from her vehicle to contact the supervisor.2 Wood testified that there was "an incline on the east side, on the grass, [like] a little hill" outside the entrance.3 Wood "knew . . . it was important to be careful" because she had observed ice covering the entire area around the entrance and "honestly believe[d] [she] was as careful as [she] could be" traversing the ice.4 Nevertheless, Wood alleged she slipped on the ice, fell flat on her back, and sustained injuries. Subsequently, Wood discussed the accident with an employee of the dealership who acknowledged, "[y]eah, I should have [put salt down] when I got here."5 ¶3 Wood sued Mercedes-Benz of Oklahoma City, alleging negligence based on the company's failure to maintain its premises in a reasonably safe condition. Mercedes-Benz denied liability and later filed a motion for summary judgment. The District Court granted summary judgment in favor of the dealership without specifying a basis for its decision. The Court of Civil Appeals affirmed, holding Mercedes-Benz owed no legal duty because "Wood readily acknowledges the ice presented a known danger." Wood sought review in this Court, and we granted certiorari to address the propriety of summary judgment. Standard of Review ¶4 This appeal stems from a grant of summary judgment, which calls for de novo review. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Under the de novo standard, this Court is afforded "plenary, independent, and non-deferential authority to examine the issues presented." Harmon v. Cradduck, 2012 OK 80, ¶ 10, 286 P.3d 643, 648. When examining an order sustaining summary judgment, this Court must determine whether the record reveals disputed material facts. Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶ 11, 306 P.3d 544, 548. Even when basic facts are undisputed, motions for summary judgment should be denied, if from the evidence, reasonable persons might reach different inferences or conclusions. Id. All facts and inferences must be viewed in a light most favorable to the party opposing summary adjudication. Id. Analysis ¶5 Traditionally, in premises liability cases we have applied the common law's tripartite classification system for assessing landowner liability for injuries sustained on the property. The initial determination to be resolved in these cases has been the "entrant's status-based classification under traditional common law terms--trespasser, licensee or invitee." Scott v. Archon Group, L.P., 2008 OK 45, ¶ 18, 191 P.3d 1207, 1211. We held that a property owner, as an invitor, owes the highest duty of care to an invitee.6 Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 10, 951 P.2d 1079, 1084. Our prior opinions obligate a landowner to "exercise reasonable care to keep the premises in a reasonably safe condition and to warn [an invitee] of conditions which [are] in the nature of hidden dangers, traps, snares or pitfalls." Martin v. Aramark Services, Inc., 2004 OK 38, ¶ 5, 92 P.3d 96, 97. ¶6 Our opinions have generally eliminated a landowner's duty to protect a third-party for "dangers so 'open and obvious' as to reasonably expect others to detect them for themselves." Williams v. Tulsa Motels, 1998 OK 42, ¶ 6, 958 P.2d 1282, 1284. These cases have reasoned that an open and obvious hazard relates directly to the foreseeability of a danger, and therefore, affects a landowner's duty. See, e.g., Katning v. Melvin Simon & Associates, Inc., 1994 OK 68, ¶ 10, 876, P.2d 239, 240. ¶7 However the open and obvious doctrine is not absolute under our case law. For claims predicated on negligence, the threshold question is the existence of a duty. Miller v. David Grace, Inc., 2009 OK 49, ¶ 11, 212 P.3d 1223, 1227. Whether a duty existed is a question of law. Id. The relevant inquiry for assessing the existence of a duty in negligence cases was described as follows: One of the most important considerations in establishing a duty is foreseeability. Foreseeability is critical as it determines (1) to whom a duty is owed and (2) the extent of the duty. A defendant owes a duty of care only to foreseeable plaintiffs. As for the extent of the duty, it too is determined in great part by the foreseeability of the injury. Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, another person will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises. Weldon v. Dunn, 1998 OK 80, ¶ 11, 962 P.2d 1273, 1276 (citations omitted). Applying the foreseeability test in a premises liability case, we explained that a landowner "does have a duty to exercise ordinary care to prevent injury to another whenever the circumstances are such that the owner, as an ordinary prudent person, could reasonably foresee that another will be in danger of injury as a probable consequence of the owner's actions." Brown v. Alliance Real Estate Group, 1999 OK 7, ¶ 6, 976 P.2d 1043, 1045 (citation omitted and emphasis added). ¶8 More specifically, we have rejected the open and obvious doctrine for a hazardous accumulation of ice, caused or enhanced by a landowner, and determined the creation of such a dangerous condition would impose a legal duty on the owner to exercise care for the protection of third parties. Krokowski v. Henderson Nat. Corp., 1996 OK 57, ¶¶ 7-8, 917 P.2d 8, 11.7 In Krokowski, an apartment tenant slipped and fell on an icy sidewalk while walking from the parking lot to his apartment. Id. ¶ 2, 917 P.2d at 10. The tenant claimed the landlord had installed a drain pipe in such a way that, when it rained, water would unnaturally pool around the pipe. Id. ¶ 1, 917 P.2d at 11. Additionally, the tenant presented evidence that the pooling caused a hazard greater than what was normally present when natural freezing conditions occurred. Id. ¶ 7, 917 P.2d at 11. We found that evidence presented to the trial court could show that the condition "causing the tenant's injury may have resulted from an increased natural hazard brought about by the landlord's placement of the drain pipe." Id. "Because reasonable people could differ on whether the [tenant's] fall was caused by a natural accumulation of ice or by an increase in the natural hazard caused by the placement of the drain pipe," summary judgment was improper. Id. ¶ 8, 917 P.2d at 11. ¶9 We agree with Wood that under the peculiar facts of this case, Mercedes-Benz owed a duty to take remedial measures to protect her from the icy conditions surrounding the entry to its facility. The accumulation of ice throughout Mercedes-Benz' facility was caused by the activation of the dealership's sprinkler system during freezing temperatures; not by a natural condition. The dealership had notice of the icy conditions surrounding the entire building and knew that Ned's Catering was sending its employees to the facility to cater the business' scheduled event. As such, it was foreseeable that Ned's Catering employees would encounter the icy hazards created by the sprinkler system and would likely proceed through the dangerous condition in furtherance of their employment.8 Conclusion ¶10 We find that Mercedes-Benz had a duty to take precautionary measures for the employees of Ned's Catering. Further, we find there is a question of fact regarding whether Mercedes-Benz breached its duty toward Wood, requiring submission of this matter to a jury. Judgment of the trial court is reversed, the opinion of the Court of Civil Appeals is vacated, and the cause is remanded for further proceedings consistent with this opinion. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; MATTER REMANDED FOR FURTHER PROCEEDINGS ¶11 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, GURICH, JJ., concur. ¶12 KAUGER, WINCHESTER, TAYLOR (by separate writing), COMBS (by separate writing), JJ., dissent. FOOTNOTES 1 Deposition of Erica Wood, page 17, lines 6-25, cited in Defendant, Mercedes-Benz of Oklahoma City's Motion for Summary Judgment with Brief in Support. 2 This Court recognizes that the Appellee, Mercedes-Benz, maintains that Wood's retrieval of her cell phone was purely personal. For purposes of summary judgment, we view the facts in a light most favorable to the non-moving party. Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶ 11, 306 P.3d 544, 548. 3 Deposition of Erica Wood, Page 21, lines 21-25, cited in Defendant, Mercedes-Benz of Oklahoma City's Motion for Summary Judgment with Brief in Support. 4 Id. Page 24, , lines 7-8. 5 Id. Page 35, lines 2-7. 6 An invitee is defined as one who uses the premises of another for the purpose of a common interest and mutual advantage. Brown v. Nicholson, 1997 OK 32, ¶ 6, 935 P.2d 319, 321. In the typical case, the invitee can protect herself by leaving the premises when an open and obvious hazard is encountered or by avoiding the premises altogether. In this case, neither of these choices was available to Wood. She was not a customer of the dealership, but was present to fulfill her employer's contractual duty to provide service for an event sponsored by the dealer. Wood's presence and exposure to the hazardous icy condition was compelled to further a purpose of the dealership. 7 Our cases generally recognize a distinction between hazards occurring naturally versus those which are created or aggravated through some action of the landowner. See, e.g., Dover v. W.H. Braum, Inc., 2005 OK 22, ¶¶ 7-8, 12, 111 P.3d 243, 245-246 (affirming summary judgment for landowner where no evidence demonstrated store had knowledge of icy conditions and "no act on the part of [store]. . .[created] a greater hazard than that brought about by natural causes"). 8 Our opinion should not be construed as abrogating the open and obvious defense in all cases. The icy condition is not dispositive of Mercedes-Benz' duty in this case because Wood was required to cross the hazardous condition in furtherance of her employment. As opposed to a random customer appearing at the dealership, Mercedes-Benz knew that employees of Ned's Catering would be arriving and would be required to enter the building. TAYLOR, J., dissenting: ¶1 I respectfully dissent to the Court's decision rendered today. The Court ignores our long-standing laws regarding the open-and-obvious doctrine and the duty in a premises-liability action in order to obtain the result it reaches. ¶2 The facts are undisputed. On March 8, 2008, the plaintiff was an employee of a catering company hired by the defendant to assist with an event at defendant's business. The plaintiff drove to the defendant's business, arriving about 8:45 a.m. When she arrived, the plaintiff drove around the building looking for a parking place. As she drove around, the plaintiff noticed ice on the street, grass, and sidewalks around the building, including those on the east side. The ice was localized to the building, and there was no ice on the public streets that morning. The plaintiff parked her car on the east side of the building and walked into the building, having traversed over grass and a sidewalk that were icy. Because of the ice, the plaintiff was cautious and careful. The plaintiff could not locate her supervisor in the building, and she started back to her car to retrieve her cell phone. When the plaintiff left the building, she was as "careful as she could be" because of the ice, but she slipped and fell in spite of her caution. The plaintiff later learned that the sprinkler had been on earlier that morning. ¶3 It is undisputed that the plaintiff drove up to the building and observed the ice everywhere. She got out of her car and walked across the ice the first time and somehow survived the journey without mishap. The plaintiff admitted that after surviving one journey over the ice, she made the choice to go back for more. She knew of the dangerous, icy conditions; and this time she fell down. The second journey over the ice was her choice and at her peril and was not required by the defendant, according to the facts presented in the record before this Court. Nothing in the facts show the plaintiff was required to return to her car for her cell phone rather than use the defendant's business phone or some other phone to contact her boss. It is folly to suggest that the only phone she could use was the phone on the other side of the open and obvious ice. No one but the plaintiff is responsible for the consequences of her decision. There is nothing about her status as an employee of the catering company that exempts her from this Court's decades of adherence to the open-and-obvious doctrine or changes her status as an invitee. ¶4 The Court's decision shows a lack of judicial restraint as well as disrespect for this Court's long-standing jurisprudence and the rule of law. Grounded in the common law, this Court has long recognized actionable negligence has three elements: (1) a duty owed by the defendant to the plaintiff, (2) the defendant's failure to perform the duty, and (3) an injury to the plaintiff caused from the defendant's failure to perform the duty. Faurot v. Okla. Wholesale Grocery Co., 1908 OK 85, ¶ 9, 95 P. 463, 465. "The threshold question in any negligence action is whether the defendant has a duty to the plaintiff." Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶ 11, 256 P.3d 38, 43. The lack of any one element, including a duty owed by the defendant, defeats a claim for actionable negligence. Id. This rule remains as vital today as it was in 1908. Id.; Scott v. Archon Group, L.P., 2008 OK 45, ¶ 1, 191 P.3d 1207, 1208; Tucker v. ADG, Inc., 2004 OK 71, ¶ 17, 102 P.3d 660, 667 ("In the first instance, there is no need for any defense at all because where there is no duty or negligence there can be no liability.") ¶5 As early as 1931, this Court recognized the common-law rule of premises liability that an owner or occupant "is under no legal duty to reconstruct or alter premises so as to obviate known and obvious dangers" and is not "liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care." City of Tulsa v. Harman, 1931 OK 73, ¶ 37, 299 P. 462, 463. Until today, this Court has consistently adhered to this premises-liability rule. Sholer, 2011 OK 24, ¶ 2, 256 P.3d at 40; Archon Group, 2008 OK 45, ¶ 21, 191 P.3d at 1212; Tucker, 2004 OK 71, ¶ 13, 102 P.3d at 666; Kastning v. Melvin Simon & Assoc., Inc., 1994 OK 68, ¶¶ 6, 10, 876 P. 2nd 239, 240; Turner v. Rector, 1975 OK 172, ¶ 10, 544 P.2d 507, 509 (citing Jackson v. Land, 1964 OK 102, 391 P.2d 904 (Syllabus by the Court)); Nicholson v. Tacker, 1973 OK 75, ¶ 18, 512 P.2d 156, 159 ("The presence of an open and obvious danger is akin to the defendant nailing a 'Danger' sign on the premises."); C.R. Anthony Co. v. Million, 1967 OK 231, ¶¶ 7-8, 435 P.2d 116, 118; Rogers v. Cato Oil & Grease Co., 1964 OK 152, ¶¶ 21-22, 396 P.2d 1000, 1004-05; Jackson, 1964 OK 102, ¶ 0, 391 P.2d 904 (Syllabus by the Court, No. 3); City of Drumright v. Moore, 1946 OK 203, ¶¶ 9-14, 170 P.2d 230, 233. ¶6 This Court has refused to limit the open-and-obvious doctrine whenever it has come under attack. Tucker, 2004 OK 71, ¶ 17, 102 P.3d at 667; Buck v. Del City Apartment, Inc., 1967 OK 81, ¶ 23, 431 P.2d 360, 366; see Lohrenz v. Lane, 1990 OK 18, ¶ 16, 787 P.2d 1274, 1276 ("Appellant [a trespasser] argues that this is the modern view and that to follow the common law would be to maintain an 'ancient and archaic citadel of class privilege' which is out of step with current trends of Tort Law."); Midland Valley R.R. v. Graney, 1919 OK 315, ¶ 3, 185 P. 1088, 1088 ("[W]here there is no evidence reasonably tending to show that the defendant is guilty of negligence, it is error for the trial court to submit the issue to the jury."). ¶7 In Tucker, this Court declined to change the common-law rule regarding open-and-obvious dangers and recognized that the rule is consistent with article 23, section 6 of the Oklahoma Constitution. 2004 OK 71, ¶ 17, 102 P.3d at 667. This Court found that the defenses of assumption of the risk and contributory negligence need not be submitted to a jury where an invitee was injured from an open-and-obvious danger "because where there is no duty or negligence there can be no liability." Id. Tucker remains the law today regarding an open-and-obvious danger. Scott, 2008 OK 45, ¶¶ 1, 21, 191 P.3d at 1208, 1212 (finding no duty to warn invitee of open-and-obvious danger); see Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, 256 P.3d 38 (finding whether a danger is open and obvious may be a question for a jury and reaffirming the rule that there is no duty to warn of an open-and-obvious danger). ¶8 The Court's reliance on Krokowski v. Henderson National Corp., 1996 OK 57, 917 P.2d 8, is misplaced. We have never, in Krokowski or any other case, "rejected the open and obvious doctrine for a hazardous accumulation of ice, caused or enhanced by a landowner." In Krokowski, the plaintiff asserted that the invitor increased the risk of danger from a naturally occurring accumulation of ice and that a drain pipe's placement increased the natural hazard. Nothing in Krokowski indicates that the increased hazard was open and obvious or that the plaintiff in the case recognized the risk of walking on the increased hazard when he was injured. Krokowski did not address the invitor's liability for an increased hazard which was open and obvious. ¶9 The Court relies on Weldon v. Dunn, 1998 OK 80, 962 P.2d 1273, for its new rule of law that any foreseeable risk creates a duty of care. This new rule of law has no support in Weldon; rather, the Court takes language out of context to bolster its position. The particular language states: "Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, another person will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises." Id. ¶ 11, 962 P.2d at 1276 (citing Bradford Sec. Processing Serv. v. Plaza Bank & Trust, 1982 OK 96, ¶ 6, 653 P.2d 188, 190). An invitor would not foresee that an invitee would be injured by open-and-obvious dangers "which are so apparent or readily observable that one would reasonably expect them to be discovered." Id. ¶ 12, 962 P.2d at 1276-77. In Weldon, this Court found that the invitor owed no duty to the invitee even though the risk was foreseeable because the danger was open and obvious. ¶10 Today's decision abandoning the open-and-obvious doctrine and changing the duty in premises-liability actions has far-reaching implications. If, for example, a pile of bananas falls in the middle of a grocery store floor, a customer sees the banana pile and is aware of the risk of slipping on the bananas, and the customer walks back and forth over the bananas until the customer finally falls and is injured, the store may now liable under the Court's new rule. I cannot abide a new rule of law that would allow an invitee to recover when she ignores an open-and-obvious risk merely because the risk was foreseeable. Surely the banana pile would pose a foreseeable risk but not create a duty which gives rise to liability for an injury incurred from a slip and fall. Under today's pronouncement, an invitor has a duty to warn against any foreseeable danger, no matter how absurd the result. ¶11 I would point out that this is not a worker's compensation claim and that the defendant is not the plaintiff's employer. I would urge my fellow members of the Court to exercise restraint in this matter. As this Court stated in Lohrenz, 1990 OK 18, ¶ 9, 787 P.2d 1274, 1277: As judges, we are accountable for interpreting the law according to precedent and sound public policy. We are not afforded the luxury of indulging in sympathetic tendencies at another's expense. The duty of an invitor is based on the proper balance between an invitor's rights and the rights of those coming upon the property. Id. The Court has failed to articulate any valid reason for shifting the balance to favor an invitee. As in Lohrenz, we should follow our precedents in the absence of sound public policy for abandoning the current rule of law. COMBS, J., with whom KAUGER, J., joins, dissenting: ¶1 The central issue of this cause is whether a property owner owes a duty of care to protect third parties from ice that is open and obvious when the actions of the landowner created or enhanced the hazard. The majority determines that the open and obvious doctrine does not apply and a duty is owed in such circumstances. Because this Court has long held that landowners have no duty to guard against open and obvious hazards, including ice an entrant is aware of, I must respectfully dissent from the majority's departure from this Court's precedent and the settled principles of the common law of Oklahoma. I. The Open and Obvious Doctrine Concerns the Existence of a Legal Duty on the Part of the Defendant, and Where There is no Duty There Can Be no Liability. ¶2 Any actionable claim for negligence requires three fundamental elements: 1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; 2) a breach of that duty by the defendant; and 3) injury to the plaintiff proximately resulting therefrom. Berman v. Lab. Corp. of America, 2011 OK 106, ¶16, 268 P.3d 68; Smith v. Hines, 2011 OK 51, ¶12, 261 P.3d 1139; Scott v. Archon Group, L.P., 2008 OK 45, ¶17, 191 P.3d 1207. The threshold question in any negligence action is whether the defendant has a duty to the plaintiff. Sholer v. ERC Mgmt. Group, LLC, 2011 OK 24, ¶11, 256 P.3d 38; Scott, 2008 OK 45, ¶17; Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶8, 951 P.2d 1079. The reason for this threshold question is that there can be no negligence in the absence of a defendant's duty to the plaintiff. Scott, 2008 OK 45, ¶17; Tucker v. ADG, Inc., 2004 OK 71, ¶21, 102 P.3d 660; City of Tulsa v. Harmon, 1931 OK 73, ¶37, 299 P. 462. The question of whether a duty exists is properly a question of law for the court. Bray v. St. John Health Sys., Inc., 2008 OK 51, ¶6, 187 P.3d 721; Scott, 2008 OK 45, ¶17. ¶3 In the specific context of premises liability, the question of what duty is owed is answered in part by the status of the entrant - a question that is the direct result of the complicated interplay between the historical rights of landowners and the evolution of the nascent common law of torts. As this Court stated in Sutherland v. Saint Francis Hosp., Inc., 1979 OK 18, ¶5, 595 P.2d 780 (footnotes omitted): [l]and possessor's liability in negligence for harm occurring upon the premises varies with the status of the entrant complaining of injury. Definition of duty that marks out the limit of protection afforded an entrant broadens or narrows with the beneficial interest of the possessor in the presence of the other upon the land. This has been the common law approach ever since landlord's sovereignty and immunity for acts done within the boundaries of his land gradually gave away to present-day civil accountability. When modern tort law finally incorporated possessor's liability, the concept of negligence came to be applied within the restrictive framework of relational, status-based duties. In short, the common law has never seen fit to extend its principles of general negligence (as they came to be fashioned in the last century) to govern harm occasioned on the premises of others. ¶4 The result of the evolution described above is the existence of the three classes of entrant discussed briefly by the majority: trespasser, licensee, and invitee. Sholer, 2011 OK 24, ¶11, 256 P.3d 38; Scott, 2008 OK 45, ¶18. In Scott, this Court restated a concise explanation of the classes of entrant and what duty each is owed by a landowner: "To a trespasser, a landowner owes . . . only a duty to avoid injuring him wilfully or wantonly. To a licensee, an owner owes a duty to exercise reasonable care to disclose to him the existence of dangerous defects known to the owner, but unlikely to be discovered by the licensee. This duty extends to conditions and instrumentalities which are in the nature of hidden dangers, traps, snares, and the like. To an invitee, an owner owes the additional duty of exercising reasonable care to keep the premises in a reasonably safe condition for the reception of the visitor. Even vis-a-vis an invitee, to whom a landowner owes the highest duty in this trichotomous classification system, the law does not require that the landowner protect the invitee against dangers which are so apparent and readily observable that one would reasonably expect them to be discovered. In other words, a landowner owes to an invitee, as well as to a licensee, a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like. A hidden danger within this rule of liability need not be totally or partially obscured from vision or withdrawn from sight; the phrase is used to describe a condition presenting a deceptively innocent appearance of safety 'which cloaks a reality of danger.' Furthermore, failure to remove known but obvious hazards by alteration or reconstruction of the premises is not a breach of the landowner's duty even to an invitee." Scott, 2008 OK 45, ¶19 (quoting Pickens, 1997 OK 152, ¶10) (emphasis added). ¶5 Of the three classes of entrant, the invitee is entitled to the greatest protection. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶21. However, as the above discussion of the types of entrants indicates, even invitees are not owed a duty by landowners to guard against open and obvious hazards on the premises. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶2. This rule is the essence of what has become known as the open and obvious doctrine within the common law, and which this Court has applied consistently since at least 1931.1 Importantly, this Court has routinely applied this doctrine and found no duty even in situations where the hazard was in some way created by the property owner.2 This Court stated the rule very clearly in Nicholson v. Tacker, 1973 OK 75, ¶11, 512 P.2d 156 (emphasis added): "[j]ust because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable." II. The Majority's Reliance on Brown v. Alliance Real Estate Group and Krokowsky v. Henderson Nat. Corp. is Misplaced Because Wood Was Aware of the Ice and the Danger it Presented. ¶6 The majority's assertion that Defendant Mercedez-Benz of Oklahoma City owed a duty to Plaintiff Erica Wood to take remedial measures to protect her from the icy conditions surrounding its facility rests on two main points. First, quoting Brown v. Alliance Real Estate Group, 1999 OK 7, ¶6, 976 P.2d 1043, the majority asserts that a landowner does have a duty to exercise ordinary care to prevent injury to another whenever the circumstances are such that the owner, as an ordinary prudent person, could reasonably foresee that another will be in danger of injury as a probable consequence of the owner's actions. Second, citing Krokowski v. Henderson Nat. Corp., 1996 OK 57, ¶¶7-8, 917 P.2d 8, the majority asserts that this Court has rejected the open and obvious doctrine for a hazardous accumulation of ice caused or enhanced by the landowner, and determined that the creation of such a dangerous condition would impose a duty on the owner to exercise care for the protection of third parties. ¶7 Both Brown and Krokowski rely extensively on another decision of this Court, Buck v. Del City Apartments, Inc., 1967 OK 81, 431 P.2d 360, and a firm understanding of this Court's determination in Buck is essential for understanding why the majority's reliance on Brown and Krokowski is misplaced. In Buck, a plaintiff sued a motel owner after injuring herself in a fall on ice, that had accumulated on the porch steps and that she did not see. 1967 OK 81, ¶18. After discussing application of the open and obvious doctrine, this Court determined that the plaintiff could not recover because: It is clear from the evidence that the wife knew or should have known of the general weather conditions. The dangers from them are universally known and were equally as apparent to her as they were to the motelkeepers. There is no evidence here that the usual hazard from the icy condition was in any way increased by an act of the motelkeepers. Where there is no act on the part of the owner or occupant of the premises creating a greater hazard than that brought about by natural causes, dangers created by the elements, such as the forming of ice and the falling of snow, are universally known, and all persons on the property are expected to assume the burden of protecting themselves from them. Buck, 1967 OK 81, ¶22. This Court determined that the landowner in Buck did not owe a duty because the injured person should have known of the general weather conditions and the dangers from them, i.e. ice, were universally known and were as apparent to her as they were to the motelkeepers. Buck, 1967 OK 81, ¶22. The Court's determination was therefore in keeping with its application of the long standing rule of the open and obvious doctrine, which it reiterated: [t]he law does not require the owner or occupant of land to warrant that the invitee shall suffer no injury upon the premises; his duty is discharged when reasonable care is taken to prevent the invitee's exposure to dangers which are more or less hidden, and not obvious. Buck, 1967 OK 81, ¶21. ¶8 In Brown, 1999 OK 7, this Court clarified the principles set out in Buck. Notably, this Court clarified that Buck did not declare that under no circumstances may a premises liability claim be maintained for an accident attributable to a natural accumulation of snow and ice. Brown, 1999 OK 7, ¶4. In other words, the Buck ruling does not mean that natural accumulations of snow and ice are never open and obvious as a matter of law. However, "Buck reasoned that perceptible hazards created by the elements, such as the accumulation of ice and snow, are universally appreciated by all reasonable people using due care and circumspection. Buck teaches that an accumulation of ice or snow, visible upon due care and circumspection, does not constitute a hidden danger such that the premises owner is under a duty to give warning." Brown, 1999 OK 7, ¶4. ¶9 The majority quotes a single point from Brown concerning foreseeability, but ignores the factual underpinnings of the case. Brown, 1999 OK 7, ¶6 reads in full: The summary judgment evidentiary material tends to show not only that the pavement in front of the real estate office had a deceptively innocent appearance, but also that the premises owner was on notice of the dangerous patch of invisible ice because of another accident that occurred earlier the same day. Consistent with Buck, a premises owner does have a duty to exercise ordinary care to prevent injury to another whenever the circumstances are such that the owner, as an ordinary prudent person, could reasonably foresee that another will be in danger of injury as a probable consequence of the owner's actions. In other words, the owner had a duty to protect the plaintiff in Brown from the black ice because 1) it was not an ordinarily perceptible hazard (nor did the particular plaintiff see it) and 2) the owner knew it was there and dangerous because it had already caused an accident. Brown, 1999 OK 7, ¶¶5-6. The owner in Brown had specific knowledge of a non-obvious danger that might injure someone on the property. Under those facts, the potential harm to others and the likelihood that others would fail to perceive it was foreseeable. Central to the entire determination in Brown, and its application of Buck, is the fact that the black ice was not something a visitor could be expected to see or appreciate the danger of. ¶10 The majority's reliance on Krokowski is also misplaced. In Krokowski, this Court applied the core holding of Buck to a plaintiff who claimed to have slipped on ice allegedly caused not by natural weather conditions, but by the placement of a landlord's drain pipe. The Court in Krokowski determined that an issue of fact existed as to whether the plaintiff's injury was due to natural accumulation of ice, or by an increase in the natural hazard caused by the placement of the drain pipe. Krokowski, 1996 OK 57, ¶8. ¶11 The majority reads Krokowski to hold that a landlord owes a duty to guard against any harm caused by an unnatural icy hazard whether the injured party was aware of the hazard or not. This is not the case. Krokowski relies upon and quotes a specific passage from Buck: ". . . It is clear from the evidence that the wife knew or should have known of the general weather conditions. The dangers from them are universally known and were equally as apparent to her as they were to the motelkeepers. There is no evidence here that the usual hazard from the icy condition was in any way increased by an act of the motelkeepers. Where there is no act on the part of the owner or occupant of the premises creating a greater hazard than that brought about by natural causes, dangers created by the elements, such as the forming of ice and the falling of snow, are universally known, and all persons on the property are expected to assume the burden of protecting themselves from them . . ." Krokowski, 1996 OK 57, ¶6 (quoting Buck, 1967 OK 81, ¶22). This entire passage indicates that a duty may exist in situations where a property owner increases the hazard caused by natural weather conditions beyond what a visitor could be assumed to be aware of, because while the natural dangers of ice are known, extra ice caused by the landlord's actions may not be something a visitor expects. Remember that the visitor in Buck slipped on ice she did not see. The landlord owed no duty because she should have known of the natural dangers of ice even if she was subjectively unaware of its presence. ¶12 In this cause, there is no question whatsoever that Wood was aware of the ice surrounding the dealership. As the majority states, she knew it was important to be careful because she observed ice covering the entire entrance area. This is not a situation analogous to Krowkowski or Brown where the owner's actions created an enhanced danger beyond the normal danger of ice, or where there was hidden black ice of which the property owner had prior notice. Even though the ice was formed by sprinklers and not natural precipitation, Wood recognized the ice for what it was and was aware of the danger it presented. This is not a question of what Wood should have known. It is a question of what she did know. By attempting to carve out an exception to the open and obvious doctrine, the majority would erode the clear rule that a property owner owes no duty as a matter of law to guard against dangers that are open and obvious to visitors. This court summed up the rule clearly in Buck, and nothing within this Court's holding in Krokowski or Brown has altered it: ¶20 The owner or person in charge of the premises has no obligation to warn an invitee, who knew or should have known the condition of a property, against patent and obvious dangers. The invitee assumes all normal or ordinary risks incident to the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to remove known and obvious hazards, nor is he liable to an invitee for an injury resulting from a danger which was obvious and should have been observed in the exercise of ordinary care. ¶21 The duty to keep premises in a reasonably safe condition for the use of the invited public applies solely to defects or conditions which may be characterized as in the nature of hidden dangers, traps, snares, pitfalls, and the like - things which are not readily observable. The law does not require the owner or occupant of land to warrant that the invitee shall suffer no injury upon the premises; his duty is discharged when reasonable care is taken to prevent the invitee's exposure to dangers which are more or less hidden, and not obvious. In the absence of a duty neglected or violated, there can be no actionable negligence Buck, 1967 OK 81, ¶¶20-22 (emphasis added). Conclusion ¶13 Actionable negligence requires breach of a duty on the part of the defendant. Berman, 2011 OK 106, ¶16; Smith, 2011 OK 51, ¶12; Scott, 2008 OK 45, ¶17. In premises liability, the duty owed by the defendant is determined by the classification of the entrant, but regardless of the entrant's classification, the defendant owes no duty to guard against hazards that are open and obvious. Sholer, 2011 OK 24, ¶12; Scott, 2008 OK 45, ¶21; Buck, 1967 OK 81, ¶20. ¶14 The rule of Buck, Krokowski, and Brown is this: a property owner owes no duty to safeguard an invitee from dangers created by ice, even ice the property owner has created, if the danger was, under the facts, open and obvious to the invitee. Those cases were concerned with what visitors should know or should be assumed to know, whereas this cause concerns what a visitor did know. Without question, the facts indicate that Wood was aware of the ice and the risk it presented. The actions of Mercedes-Benz did not create a hidden danger. Summary judgment was proper, as under the facts of this case, Mercedes-Benz owed no duty to Wood. FOOTNOTES 1 See, e.g., Sholer, 2011 OK 24, 256 P.3d 38; Scott, 2008 OK 45, ¶10-14, 191 P.3d 1207 (defendant has no duty to guard against open and obvious hazards, but whether a hazard is open and obvious may be a question of fact for the jury); Tucker, 2004 OK 71, 102 P.3d 660; Kastning v. Melvin Simon & Assoc., Inc., 1994 OK 68, ¶6, 876 P.2d 239 ("It is well established that a landowner has no duty to warn of dangers that are open and obvious."); Turner v. Rector, 1975 OK 172, ¶10, 544 P.2d 507 ("There is no obligation to warn an invitee, who knew the condition of a property, against patent and obvious dangers, and there is no actionable negligence in the absence of a duty neglected or violated.") (quoting Jackson v. Land, 1964 OK 102, ¶0, 391 P.2d 904); Nicholson v. Tacker, 1973 OK 75, ¶19, 512 P.2d 156 ("the fact that the danger is open and obvious nullifies duty of defendant to plaintiff."); C.R. Anthony Co. v. Million, 1967 OK 231, ¶¶7-8, 435 P.2d 116 (An "owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.") (quoting Safeway Stores v. McCoy, 1962 OK 194, ¶8, 376 P.2d 285); Jackson, 1964 OK 102, ¶0 ("there was no obligation to warn an invitee, who knew the condition of a property, against patent and obvious dangers, and there was no actionable negligence in the absence of a duty neglected or violated.") (citing Long Const. Co. v. Fournier, 1942 OK 83, ¶10, 123 P.2d 689); City of Tulsa v. Harman, 1931 OK 73, ¶37, 299 P. 462 ("an injured party will not be permitted to recover damages where he did in fact fully appreciate the peril; so, in respect of such perils as may be said to be patent or obvious, there is no obligation to give any sort of warning.") 2 See, e.g., Scott, 2008 OK 45, ¶21 (clearance beam on owner's property was an open and obvious hazard); Nicholson, 1973 OK 75, ¶11 (defective fishing dock was an open and obvious hazard); Pickens, 1997 OK 152, ¶11 (retaining wall was an open and obvious hazard).

15185e61-c7b0-485e-8166-e1bd017b628f

Eldredge v. Taylor

oklahoma

Oklahoma Supreme Court

ELDREDGE v. TAYLOR2014 OK 92Case Number: 113018Decided: 11/12/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JULIE ELDREDGE, Plaintiff/Appellant,v.KAREN TAYLOR, Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY,THE HONORABLE GARY MCCURDY, PRESIDING ¶0 Partners in a civil union signed co-parenting agreements designating Plaintiff as the parent of Defendant's two biological children. Upon their separation and dissolution of the civil union, Plaintiff continued to act as a parent for the children. Defendant removed the children from Plaintiff's care, changed their last names, and planned to remove the children from Oklahoma. Plaintiff petitioned the District Court in Canadian County, Oklahoma, for a determination of her parental rights, inter alia. The district court granted Defendant's motion to dismiss. Plaintiff appealed. This Court retained the appeal. DISTRICT COURT'S JUDGMENT REVERSED;REMANDED WITH INSTRUCTIONS. Melody Huckaby Rowlett, Rowlett Law Office, PC, Oklahoma City, Oklahoma, for the appellant.Candee R. Wilson, Norman, Oklahoma, and Cathy C. Barnum and Kelley Bodell, Barnum & Clinton, PLLC, Norman, Oklahoma, for the appellee. TAYLOR, J. ¶1 The only issue presented for this Court's consideration is whether the trial court erred in granting the defendant's motion to dismiss for want of jurisdiction based on the plaintiff's lack of standing. Questions within the issue are (1) whether a person has standing to seek a best-interest-of-the-child hearing when the sole biological parent relinquished some of her parental rights to the person by entering into a written co-parenting agreement; (2) whether the doctrine of in loco parentis can extend to a person who is not legally related to a child when there is no allegation the sole biological parent is unfit; (3) whether Title 10, Section 7700-204(A)(5) of the Oklahoma Statutes creates a presumption of parentage in a woman who holds herself out as a parent and resides with a child for at least two years; and (4) whether a person who is not legally related to a child can have a constitutionally protected liberty interest in her relationship with children she has helped bring into the world and has continued to raise and support or, alternatively, whether children have a constitutionally protected liberty interest in their relationship with such a person. Because we need to find standing under only one theory and we answer the first question in the affirmative, we need not address the other three questions. We find that the trial court erred in granting the motion to dismiss. ¶2 This is an issue of first impression in Oklahoma. The unique facts here are that a sole biological parent chose to conceive children with the intent that her partner in a civil union would share the rights and duties of parentage, put this intent into writing, nurtured her partner's relationship with the children for years, severed the parent-child relationship for no apparent reason, and now seeks to deny her partner standing to contest parentage, visitation, and custody in a best-interest-of-the-child hearing. I. STANDARD OF REVIEW ¶3 A trial court's judgment dismissing a petition is reviewed de novo. Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157. When ruling on a motion to dismiss for lack of standing, the trial court and the appellate court must accept the petition's allegations and all inferences that can be drawn from them as true. Id.; Okla. Educ. Ass'n v. State ex rel. Okla. Legislature, 2007 OK 30, ¶ 10, 158 P.3d 1058, 1063. The party seeking relief has a greater burden to show she has standing in later stages of the proceedings than when defending a pretrial motion to dismiss. Okla. Educ. Ass'n, 2007 OK 30, ¶ 10, 158 P.3d at 1063. This case also involves a determination of public policy. Generally, the determination of public policy is a question of law. Shero v. Grand Sav. Bank, 2007 OK 24, ¶ 5, 161 P.3d 298, 300. The party seeking to void a contract bears the burden of proving that the contract violates public policy. Horn v. Gibson, 1909 OK 174, ¶ 0, 103 P. 563, 563 (Syllabus by the Court). II. ALLEGATIONS AND PROCEEDINGS ¶4 Keeping in mind the standard of review, we now turn to the plaintiff's allegations. The defendant does not contest these facts but deems them irrelevant based on her constitutional rights as a parent. The plaintiff, Julie Eldredge (Eldredge), and the defendant, Karen Taylor (Taylor), committed to and lived together in a family relationship from May 19, 2001, until April 2011. In 2005, the parties entered into a civil union in New Zealand. Two children were born into this civil union. The parties purchased a home together in anticipation of the children's births. The parties agreed to and planned the conception of the children using an anonymous sperm donor with Taylor as the biological mother. Eldredge supported Taylor through both pregnancies and was present during the artificial insemination, subsequent doctor appointments, and each child's birth. ¶5 The children were born in Oklahoma on July 31, 2007, and July 8, 2008, and were given the family name of Eldredge at birth. To guarantee that both parties would be considered natural, legal, and acknowledged parents, the parties entered into co-parenting agreements following the birth of each child (collectively "the Agreements"). In accordance with the Agreements, both parties were given parental rights and shared parenting responsibilities. Eldredge played the role of caregiver, assuming responsibility for the children's care, education, and development. Eldredge publicly acknowledged the children as hers. Taylor held out Eldredge as the children's mother to family members, government personnel, and the children. Taylor also held out Eldredge's family as the children's family. The children formed a parental relationship with Eldredge and formed an emotional attachment to her and her family. Eldredge executed a will that explicitly disinherited her family and benefitted the children. ¶6 The parties separated in April 2011. Without notifying Eldredge, Taylor changed the children's surnames to Taylor on May 23, 2011. The parties briefly reconciled, but did not cohabitate after January 2012. In June 2013, the parties dissolved their civil union in New Zealand. The parties continued to share parenting responsibilities equally upon their separation and after the dissolution of their civil union. Specifically, Eldredge paid Taylor an average of $763.29 per month in child support (which Taylor accepted), cared for the children, enrolled them in school, provided them her home, and was named as a parent on school and medical documentation. On January 15, 2014, Taylor removed the children from Eldredge's care and made plans to remove them from Oklahoma. ¶7 On February 4, 2014, Eldredge petitioned the district court for the following relief: (1) adopt the Agreements as a court order, (2) determine her to be a legal parent of the children, (3) grant her joint custody with a shared parenting plan, (4) return the children's surnames to Eldredge, (5) set child support pursuant to the Child Support Guidelines, (6) issue a temporary order granting custody to Eldredge, and (7) deny the children egress from the country. The district court issued an ex parte temporary emergency custody order prohibiting either party from removing the children from the state. ¶8 Taylor filed a motion to dismiss arguing that Eldredge lacked standing, the district court lacked subject matter jurisdiction, and the statute of limitations had run.1 The trial judge sustained the motion and revoked the ex parte temporary emergency custody order. Eldredge appealed. We retained the appeal. III. STANDING AND ARGUMENTS ¶9 Standing determines whether a person is a proper party to seek an issue's adjudication without deciding the issue itself. Estate of Doan v. First Nat'l Bank & Trust Co. of Tulsa, 1986 OK 15, ¶ 7, 727 P.2d 574, 576. The threshold criteria of standing are (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 7, 163 P.3d 512, 519-20. "[S]tanding to raise issues in a proceeding must be predicated on [an] interest that is 'direct, immediate and substantial.'" Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d at 576. "The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome." Id. It is axiomatic that if the allegations are taken as true, Eldredge suffered an injury in fact--the deprivation of the Agreements' benefits and a relationship with the children with whom she had developed a parental relationship. There certainly is a causal nexus between this injury and Taylor's action in withholding contact between the children and Eldredge, thereby allegedly breaching the terms of the Agreements. Eldredge has a sufficient interest in the outcome to properly litigate the issues. The only question is whether Eldredge's injury is redressable by the court. ¶10 In her petition in error, Eldredge claims that she has a legally protected interest whereby she has standing based on her status (1) as a parent under a gender-neutral reading of the provision establishing the presumption of paternity found in the Oklahoma Uniform Parentage Act (OUPA), 10 O.S.2011, § 7700-204(A)(5); (2) as a third party acting in loco parentis2 or as a de facto or psychological parent; (3) as a party to an enforceable co-parenting agreement; and (4) as a parent with a constitutionally protected interest in parenting the children. Eldredge requests that this Court reverse and remand to the district court for a hearing to establish parentage, custody, and visitation based on the best interests of the children. Eldredge admits that any relief must be granted pursuant to a best-interest-of-the-child hearing in the district court. ¶11 Taylor contends that Eldredge has no legally protected interest in custody or visitation with the children in that (1) Eldredge lacks standing because she is a legal stranger to the children and, thus, has no legally cognizable interest absent an allegation of Taylor's unfitness; (2) Oklahoma does not recognize equitable theories of parentage in the presence of a fit parent; and (3) the Agreements are illegal and unenforceable as against public policy. Taylor does not contend that Eldredge is an unfit parent. A. Eldredge's Standing Under the Co-parenting Agreements ¶12 Given Eldredge's admission that she is seeking a best-interest-of-the-child hearing, this Court need only find that Eldredge has standing under one of her theories; the remaining theories need not be addressed. Eldredge contends that she has standing to enforce the Agreements or, at a minimum, to seek a hearing on the best interests of the children. We have found that a party has standing to seek enforcement of a contract that was void as against public policy. Huber v. Culp, 1915 OK 366, ¶ 0, 149 P. 216, 216 (Syllabus by the Court 1) (holding that a clause in a contract between husband and wife which prohibits either spouse from defending a divorce action in court is void against public policy). ¶13 Taylor contends that the Agreements, or contracts, are unenforceable because they are contrary to an express provision of law and public policy. 15 O.S.2011, § 211(1)-(2).3 Specifically, Taylor argues that Oklahoma public policy is "for a child to have one mother, one father, or both, but not to have any other combination of parents," citing the prohibition on same-sex marriage, Okla. Const. art. 2, § 35,4 and the Oklahoma Adoption Code (Adoption Code) provision listing persons eligible to adopt a child, 10 O.S.2011, § 7503-1.1.5 ¶14 As the party seeking to void a contract, Taylor bears the burden of proving that the Agreements violate public policy. Horn v. Gibson, 1909 OK 174, ¶ 0, 103 P. 563, 563 (Syllabus by the Court). Taylor's reliance on the Oklahoma Constitution's ban on same-sex marriage is misplaced. The United States Court of Appeals for the Tenth Circuit recently struck down as unconstitutional Article 2, Section 35's ban on same-sex marriage. Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 83 U.S.L.W. 3102 (U.S. Oct. 6, 2014). When the United States Supreme Court denied the petition for a writ of certiorari, the Tenth Circuit opinion became final and enforceable. Fed. R. App. P. 41(d)(2)(D), 28 U.S.C.A. We will not find a statement of public policy within an unconstitutional provision, either statutory or constitutional. See Huber v. Culp, 1915 OK 366, ¶ 8, 149 P. 216, 218-19 ("The power of the court to declare a contract void as being in contravention of public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt."). ¶15 Likewise, Taylor's reliance on the Adoption Code is misplaced. The Adoption Code specifically allows adoption by "[a]n unmarried person who is at least twenty-one (21) years of age." 10 O.S.2011, § 7503-1.1. Section 7503-2.1 of the Adoption Code allows a single parent under certain circumstances which appear to be present here to consent to the adoption of her child. The Adoption Code does not place any restriction on the gender of the person adopting the child. Taylor fails to point to any place in the Adoption Code which bans adoption by a person of the same gender as a sole biological parent, and we find no such public policy in the Adoption Code. ¶16 Finally, Taylor asks this Court to find that the Agreements are contrary to Oklahoma laws on parentage and artificial insemination, but fails to cite to specific provisions of law. Argument without supporting authority will not be considered on appeal. Sup. Ct. R. 1.11(k)(1), 12 O.S.2011, ch. 15, app. 1. We find that the Agreements do not violate Oklahoma law or public policy, and thus are legal and enforceable. ¶17 Taylor has failed to direct this Court to any public policy which would cause the Agreements to be unenforceable. In fact, Oklahoma has a public policy of allowing parents to relinquish all or some of their parental rights without terminating those rights. As stated above, the Adoption Code allows parents to consent to sharing or relinquishing all or some of their parental rights. For instance, a surviving parent or a sole legal parent may consent to a third-party adoption without the legal parent terminating her parental rights. 10 O.S.2011, § 7503-2.1(A)(2). Just as step-parents may adopt a spouse's child, so may a same-sex partner adopt a partner's child. This public policy of allowing parents to share custody and control of their child by consent with a non-parent is found in the newly enacted Title 10, Sections 700 to 701 of the Oklahoma Statutes. Although not in effect when the parties executed the Agreements, in the 2014 session, the Oklahoma Legislature recognized a public policy in favor of a parent sharing some or all child-rearing responsibilities with another person regardless of gender. 10 O.S.Supp. 2014, §§ 700 to 701. Section 700(A) provides: A parent or legal custodian of a child, by a properly executed power of attorney provided in Section 2 of this act, may delegate to another person, for a period not to exceed one (1) year, any of the powers regarding the care and custody of the child, except the power to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child. A delegation of powers under this section shall not deprive the parent or legal custodian of any parental or legal authority regarding the care and custody of the child. ¶18 We find only one area where the Agreements' specific provisions may be void as against public policy: that is if they contravene the best interests of the children. Oklahoma has a strong public policy that custody and care of children should be based on their best interests. See 10 O.S.2011, § 90.4(B) (best-interest-of-the-child finding necessary for changing name of children born out of wedlock); id. § 1116.3(A)(2)(a) (requiring a finding that, on review, out-of-home placement in the best interest of child allegedly deprived); id. § 7501-1.2(A)(1) (Adoption Code's purpose to ensure and promote best interest of the child); id. § 7503-2.7(B) (allowing permanent relinquishment or consent to adoption to be set aside only if in the minor's best interest); id. § 7505-1.5 (finding of best interest of child necessary before entry of visitation agreement between birth and adoptive parents); id. § 7505-5.2 (pre-adoption home study waived upon finding in best interest of the child among other things); id. § 7505-6.3(F) (entry of final adoption decree after court satisfied adoption in best interest of child); 43 O.S.2011, § 109 (in divorce proceedings, custody based on best interest of the child); id. § 109.1 (custody during parents' separation based on best interest of the child); id. § 109.4(A)(1)(a), (b) (grandparental visitation authorized if in best interest of the child); id. § 112 (in divorce, legal separation, or annulment proceeding, custody based on best interest of the child). Thus, any scrutiny of the Agreements must be based on whether the provisions are in the best interests of the children. B. The Co-parenting Agreements Do Not Violate Taylor's Parental Autonomy ¶19 Taylor cites Troxel v. Granville, 530 U.S. 57 (2000), for the proposition that she is afforded absolute parental autonomy by virtue of the federal constitution6 and that absent a showing of unfitness, no third party may challenge her parentage. Taylor misreads Troxel.7 In Troxel, the grandparents of the child's deceased father sought visitation more than what the surviving parent was willing to allow. Id. at 61. The visitation statute at issue in Troxel allowed anyone to seek visitation rights at any time without a showing of parental unfitness, without giving any deference to a fit parent's decision, and with the only requirement that the visitation would serve the best interest of the child. Id. at 67. The United States Supreme Court recognized a parent's constitutional right to make decisions regarding their children's custody and upbringing. Id. at 65-66. There is a presumption that parents act in their children's best interests. Id. at 68-70. The Court did not hold that this presumption is irrebuttable or that a fit parent's decision regarding their children is inviolate. Rather, the Court considered the lack of special factors that would justify state interference with the parent's fundamental right to make decisions concerning the rearing of her children, id. at 68, and that there was no allegation that Granville ever sought to cut off visitation entirely. Id. at 71. The Court was particularly troubled that the trial court gave no special weight to the parent's determination, but burdened the parent with showing that the additional grandparental visitation would adversely impact the children. Id. at 69. The Court refused to "hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter." Id. at 73-74. The Court concluded that "if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." Id. at 70. ¶20 Unlike Troxel, we are not faced here with a situation devoid of special factors that would preclude state interference. Eldredge's factual allegations establish that she has more than a sufficient basis to request a best-interest-of-the-child hearing. As a parent, Taylor is presumed to have acted in the best interests of the children when she conceived the children with the intent that Eldredge would be for all practical purposes a parent to the children. Likewise, Taylor is presumed to have acted in the best interests in the children when she acted in a manner consistent with that intent--she executed Agreements in which she allegedly consented to sharing her parental authority over the children, she encouraged a parental relationship between Eldredge and the children, she held Eldredge out to the world as the children's parent, and she accepted Eldredge's financial and emotional support as a parent even after they separated. These special factors justify state interference into Taylor's decision to withdraw all of Eldredge's contact with the children. However, consistent with Troxel, on remand, the district court must place the burden on Eldredge of showing that the valid contractual provisions that she seeks to enforce are in the children's best interests. IV. CONCLUSION ¶21 The unique and compelling facts of this case make it difficult to create a general rule. Thus, this decision is limited to the facts before us and should not be read to extend rights to step-parents, grandparents, or others. Here, a mother entered into a civil union with her long-time partner; purposefully engaged in family planning requiring complicated and costly biological and legal arrangements with the intent of sharing the rights and responsibilities of parenthood with her partner; committed this intent to writing; and, for years, reaffirmed this intent by accepting financial and emotional support from her partner and actively nurturing the relationship between her partner and the children. The public policy of this State mandates that the district court consider the best interests of the children before they lose one of the only two parents they have ever known. Thus, we find that the district court erred in granting the motion to dismiss. DISTRICT COURT'S JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS. CONCUR: COLBERT, C.J.; REIF, V.C.J.; and KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, and GURICH, JJ. CONCURS IN RESULT: COMBS, J. FOOTNOTES 1 In the trial court, Taylor argued that Eldredge is barred from claiming that she is a presumed parent under the Oklahoma Uniform Parentage Act (OUPA), 10 O.S.2011, § 7700-204(A)(5), by the two-year limitation in presumed father proceedings. Id. § 7700-607(A). Because we grant Eldredge relief under her contractual claim and do not address her OUPA claims, we need not decide this question. Eldredge is within the five-year statute of limitations for a cause of action arising out of a written contract. 12 O.S.2011, § 95. 2 This Court defined the term in loco parentis as in place of a parent and recognized that a person acting in loco parentis is "one who has assumed the status and obligations of a parent without a formal adoption." Matter of B.C., 1988 OK 4, ¶ 19, 749 P.2d 542, 545. 3 Title 15, Section 211 of the Oklahoma Statutes makes unlawful, and thus unenforceable, contracts which are (1) "[c]ontrary to an express provision of law;" (2) "[c]ontrary to the policy of express law, though not expressly prohibited; or" (3) "[o]therwise contrary to good morals." 4 Article 2, Section 35 of the Oklahoma Constitution provides: A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. 5 Title 10, Section 7503-1.1 of the 2011 Oklahoma Statutes provides: The following persons are eligible to adopt a child: 1. A husband and wife jointly if both spouses are at least twenty-one (21) years of age;2. Either the husband or wife if the other spouse is a parent or a relative of the child;3. An unmarried person who is at least twenty-one (21) years of age; or 4. A married person at least twenty-one (21) years of age who is legally separated from the other spouse. 6 Although Taylor asserts her rights under the Oklahoma Constitution, as well as the federal constitution, she fails to provide any legal authority in support of her position. Argument without supporting authority will not be considered on appeal. Sup. Ct. R. 1.11(k)(1), 12 O.S.2011, ch. 15, app. 1. 7 Troxel was a plurality opinion. This Court has recognized that the factors underlying the plurality opinion were also found troubling to two of the concurring opinions. Craig v. Craig, 2011 OK 27, ¶ 21, 253 P.3d 57, 62-63; Neal v. Lee, 2000 OK 90, ¶¶ 5-7, 14 P.3d 547, 549-50. Neither the plurality opinion nor the concurring opinions is authority for Taylor's position that unfitness is the test before a Court can grant visitation to a third party.

c69a496b-dcaf-4971-98b5-3f3a53513a9a

Carbajal v. Precision Builders, Inc.

oklahoma

Oklahoma Supreme Court

CARBAJAL v. PRECISION BUILDERS, INC.2014 OK 62Case Number: 111114Decided: 07/01/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ANDRES CARBAJAL, Petitioner/Appellant,v.PRECISION BUILDERS, INC., and/or MARK DICKERSON, and/or HOOVER CONSTRUCTION CO., and/or DAVITA, INC., and THE WORKERS' COMPENSATION COURT, Respondents,andNO INSURANCE, and/or NEW HAMPSHIRE INSURANCE CO., and/or TEXAS MUTUAL INSURANCE CO. (NLC), Insurance Carriers. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. IV ¶0 Workers' compensation claimant sought benefits after he allegedly fell from scaffolding. The Workers' Compensation Court trial tribunal concluded that the claimant was not an employee. A three-judge panel of the Workers' Compensation Court affirmed the order of the trial tribunal. The Court of Civil Appeals sustained the order of the three-judge panel, and the claimant sought certiorari review in this Court. We hold that the factors applied from Page v. Hardy, 1958 OK 283, 334 P.2d 782 show that the construction worker was an employee and not an independent contractor when he was allegedly injured. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OFCIVIL APPEALS IS VACATED; ORDER OF THE THREE-JUDGE REVIEW PANEL OFTHE WORKERS' COMPENSATION COURT IS VACATED; AND THE PROCEEDING IS REMANDED TO THE WORKERS' COMPENSATION COURT FORFURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT Catherine Gatchell Cooper, Tulsa, Oklahoma, for PetitionerRichard L. Blanchard, Tulsa, Oklahoma, for Respondent, Hoover Construction Co.Dana L. Gish, Tulsa, Oklahoma, for Texas Mutual Insurance Co. EDMONDSON, J. ¶1 Claimant, Andres Carbajal, alleged that he was injured1 when scaffolding he was on was blown over and he fell while working on a construction project in Okmulgee, Oklahoma. He filed a claim in the Workers' Compensation Court and alleged that he was an employee of Precision Builders, Inc., and/or Mark Dickerson (Precision) when he fell with the scaffolding.2 The trial tribunal denied the claim upon determining that claimant was an independent contractor and not an employee. The three-judge panel affirmed the trial tribunal and the panel's order was sustained by the Court of Civil Appeals. The question presented on certiorari is whether petitioner was an employee or independent contractor. ¶2 Claimant filed a Form 3 in June 2010 and alleged that he fell from scaffolding while working at a construction site on April 26, 2010. The substantive rights and obligations of the parties in a workers' compensation proceeding are based upon the statutes in effect on the date of the worker's injury.3 The law in effect on April 26, 2010, defined "employee" for the purpose of workers' compensation as "any person engaged in the employment of any person, firm, limited liability company or corporation covered by the terms of the Workers' Compensation Act ..."4 and "employment" as "work or labor in a trade, business, occupation or activity carried on by an employer ..."5 and an "employer" is a "person, partnership, [etc.] . . . employing a person included within the term 'employee' as defined herein."6 There is a long history in this state of not including an independent contractor within the statutory definition of an employee.7 Consistent with this distinction concerning the difference between an employee and an independent contractor, 85 O.S.Supp.2009 § 11 classified an independent contractor as a type of employer who is required to be liable for the workers' compensation due to his or her employees.8 ¶3 In Page v. Hardy, 1958 OK 283, 334 P.2d 782 , this Court set out several factors to be considered when determining whether an employee/employer relationship exists. Those are: (a) the nature of the contract between the parties, whether written or oral; (b) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; (c) whether or not the one employed is engaged in a distinct occupation or business for others; (d) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (e) the skill required in the particular occupation; (f) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (g) the length of time for which the person is employed; (h) the method of payment, whether by the time or by the job; (i) whether or not the work is a part of the regular business of the employer; (j) whether or not the parties believe they are creating the relationship of master and servant; and (k) the right of either to terminate the relationship without liability. Page v. Hardy, 334 P.2d at 784-785. ¶4 The claimant testified at a hearing before the trial tribunal. Claimant is "a documented Hispanic worker" who does not speak English and did not complete the third grade. He started working for Precision in 2006 on a ranch in Texas where he did construction work. He lived there while working on the site. In 2009 he worked January and February, then stopped, and in August he went back to work for Precision. ¶5 Claimant testified on the degree of control exercised by his supervisors. He worked as part of a crew of eight to nine people, and his supervisors at Precision told him where to go, when to be there, when he could leave, and when he could go to lunch. The crew would go to lunch together. He worked from eight to fourteen hours a day. He was not allowed to come and go from a construction site whenever he wanted. His work was framing, building doors, and installing sheetrock. He did not read blueprints or construction plans, and he did what he was told to do. He testified he had no "special schooling or training" to teach him how to do construction work. He answered in the affirmative when questioned whether he was "simply told what to do, and you did it with your hands...." ¶6 He testified he would go from one job site to another as directed by his supervisors who were relating Mark Dickerson's directions, but sometimes there was a week or two, "possibly three weeks the most," but "sometimes" it was longer between construction assignments. He stated that between the assignments from Precision there was a block on a street where he could go with "a lot of people standing in there, and sometimes they go and hire you for one day . . . [s]ometimes it's just like for one day or two," and he was paid seven to eight dollars per hour. There was no testimony on the nature of the work claimant performed when working for a day or two for the various people who hired him on the street. ¶7 He testified Mark Dickerson was "the boss" at Precision and he took orders from Mr. Dickerson through two supervisors who speak Spanish. He stated he was working on a project on a ranch in Texas and two supervisors told him of the project in Oklahoma, because "it was by Mark's orders . . . and Mark gave me the address." When questioned whether Mark "invited" claimant to go to Oklahoma instead of ordering him to go, the claimant said, "No. He told me to go to work." He testified "Marcos" (Mark Dickerson) paid him $400 "gas money" for him and another Precision worker to travel from Texas to Okmulgee, Oklahoma, to work at the construction site. He stated he did not have a driver's license. The other worker was a friend who gave him rides to work. He answered in the affirmative when questioned whether he was "sometimes paid for travel costs." ¶8 Claimant testified he worked on construction sites where he would use a hammer for framing and a cordless drill for metal studs and screws. He testified he has his own tool belt and he owns a cordless drill, measuring tape, knife, pencil, level, pliers, and a sheetrock gun. He stated he has never used "leg extensions" to install sheetrock and he does not own a nail gun or compressor. ¶9 He also testified his supervisor at Precision provides a "big orange box" with tools and "we all take tools from there." He stated he used tools from the tool box supplied by Precision to perform his assigned tasks. He stated some of his co-workers used tools from the tool box and some did not. He did not provide the lumber or the metal framing used in the construction projects. When asked if he paid for nails and screws or "that kind of thing," he responded with "I don't buy anything for work." He testified he did not supply the scaffolding he was on when he fell. ¶10 Claimant testified he was paid $15.00 per hour, sometimes in cash and sometimes by a money order. He testified sometimes he is paid $500, sometimes $200, "sometimes he [Dickerson] has to complete what he owed me for past weeks." He stated he was paid by the hour, and that his two supervisors, Key or Rodriquez, "they write them [the hours] down." Claimant testified Precision never provided him any forms relating to income taxes. Claimant obtained information from the Internal Revenue Service that Precision had submitted forms to the IRS in 2008 and 2009 that designated amounts paid to claimant as "non-employee compensation." ¶11 Counsel for respondent provided a copy of a $3,000 check written in 2009 and made payable to the claimant. The check states "Subcontract" on its memo line. Claimant testified that he does not know what it says, "I just go and cash it." Counsel for respondent asked claimant why he was paid $3,000 with three $1,000 money orders in May 2010. He stated that he was owed money for work he did on "the ranch," and he had to pay others for work they did in Okmulgee. He testified he was given $3,000 because he was supposed to pay his friend and another person. He was directed to pay them because "they didn't have an ID to cash the checks," and he "had proper identification and a social security number ... and paid other people for Marcos [Mark Dickerson]." Claimant stated he did not know "why he [Dickerson] did it like that, because sometimes he gave us cash too." He stated he never held himself out as "Carbajal Construction Company." He was never asked to negotiate contracts with Precision. ¶12 No testimony was offered at the hearing by Respondent.9 Respondent introduced three exhibits, the information from the IRS for 2008 and 2009, the $3,000 check, and three $ 1,000 money orders dated May 21, 2010, and made payable to "Andreas Carbajal." ¶13 Respondent argued in this Court that on appeal the "any competent evidence" standard of review should apply and an appellate court "will defer to the weighing of evidence by the trial court." Respondent relied on two opinions by the Court of Civil Appeals as authority supporting the argument. Treat v. McDonald's, 1993 OK CIV APP 89, ¶ 7, 854 P.2d 393 and Rivera v. Wal-Mart Stores, Inc., 1999 OK CIV APP 22, ¶ 3, 977 P.2d 366. Respondent's argument and nonprecedential cited authority10 are not applicable to this controversy.11 ¶14 Respondent's argument does not make a distinction between jurisdictional facts and nonjurisdictional facts for the purpose of this Court's review of an order of the Workers' Compensation Court. Historically, this Court has used a de novo review when examining a jurisdictional issue such as whether a claimant possessed the status of "employee" at the time of injury.12 We have explained that "Because the error sought to be corrected is one from resolution of a jurisdictional fact issue, no deferential standard of review may be accorded here to the trial tribunal's finding of employment status."13 In summary, whether claimant was an employee or an independent contractor is a jurisdictional issue which requires this Court to exercise a de novo review of the record without deference to the findings of fact or legal conclusions made by the trial tribunal or the three-judge panel.14 ¶15 We have said that "An independent contractor is one who agrees to perform a certain service without the control, supervision, or direction of his employer in all matters connected with the performance of the service except the result or product of the work."15 We have also explained concerning the employer-employee relationship that "[n]o one factor is controlling, and the relationship must be based on the set of facts peculiar to the case."16 ¶16 Claimant testified that his hourly wage was $15.00 and that two people who spoke Spanish and gave him directions kept track of his time. He testified that he was instructed what to do at the construction sites. He testified that he brought his own tool belt with tools to work. He also testified that Precision provided tools for him and other co-workers to use. His contract was oral and he was told what construction sites to travel to and work at. His uncontested testimony is that Precision paid him money for traveling to different construction sites, including the one in Oklahoma where he was allegedly injured. ¶17 Precision points to claimant bringing his tool belt with tools to work. However, it is uncontested that a person acting as his supervisor in giving him directions for Precision also supplied tools for both claimant and his coworkers to use, and that these supplied tools were maintained by the supervisor on his truck at the construction sites. Claimant used some of these supplied tools. The fact that claimant used his own tools in addition to those supplied by a person acting as Precision's supervisor points to an employer allowing a convenience to an employee instead of an independent contractor required to maintain and use his or her own tools to complete a project. Claimant did not provide the lumber, metal, nails, or screws. ¶18 Respondent points to a check which states "Subcontract" on the memo line, Precision's IRS forms, and the fact that the check was for $3,000 and the total for the three money orders was $3,000. Between the years 2006 and 2010 when claimant was working for Precision, Respondent points to one check in 2009 and three money orders issued after the alleged date of injury. Claimant testified that Precision directed him to use this money to pay other workers who lacked identification and social security numbers. This testimony is not contested. Respondent states that the IRS forms for 2008 and 2009 show a contradiction in the testimony by claimant, because they show claimant received compensation as a non-employee. The fact that Precision did not withhold taxes and claimant paid others is part of our analysis,17 but these two facts are not determinative when considered with other facts. These forms were prepared and submitted to the IRS by Precision. Claimant testified that he did not know anything about taxes. ¶19 The testimony and exhibits show that Precision treated claimant as an employee for every purpose except for the IRS forms and the one check where "Subcontract" was written on the memo line of the check. But, testimony showed that claimant cannot understand English and was told to use the funds given to him for paying other coworkers. Precision knew of this language barrier when the phrase "Subcontract" was handwritten on the check in English. ¶20 The degree of control exercised by Precision over claimant at the construction site, the lack of claimant's abilities to read plans and blueprints, Precision providing tools for claimant and others to complete the assigned tasks, and travel money provided to claimant to reach the construction sites show that Precision treated claimant as employee. Claimant's work was not based upon him possessing a professional or trade license, or that he was an artisan with a specialized skill, or that he possessed specialized educational skills requiring him to use personal judgment and skill independent of Precision's control or supervision when he completed construction tasks. ¶21 Counsel for Precision not appearing in this proceeding, but appearing before the three-judge panel, made the argument "there was no specific testimony . . . [t]here was nothing about direction and controls and orders" concerning the Oklahoma job. We disagree. Claimant testified how Precision controlled him at construction sites. He was at a Precision Construction site in Oklahoma. There was no cross-examination of claimant eliciting testimony stating claimant's direction and control was less in Oklahoma than at job sites in Texas. There was no testimony before the trial tribunal that Precision's control over the claimant was anything less than that stated by claimant. There was testimony that claimant was injured 45 minutes into his first day on the Oklahoma job. This fact does not negate claimant's testimony on the control and direction exercised by Precision over claimant. ¶22 Counsel for Precision not appearing in this proceeding, but appearing before the three-judge panel, made the argument that claimant worked for others besides Precision and this fact showed that he was an independent contractor. In Page v. Hardy, supra, we referred to "whether or not the one employed is engaged in a distinct occupation or business for others." Id. 334 P.2d at 785. There was no testimony that claimant's work for others as a laborer was a distinct occupation or business, or that his work for others was anything other than providing labor. Page was published in 1958, and while we do not diminish its authority, we may not disregard the more modern economic reality that a person may have more than one employer during a period of time, or may be in a employer-employee relationship and an independent contractor relationship with someone other than the employer, or that an employer may hire a person as an employee for a specific job or a specific time period.18 ¶23 Claimant indicated that when he was hired off the street he took his tool belt with him and he was paid seven to eight dollars an hour for manual labor. Claimant's work was not based upon him possessing a professional or trade license, or that he was an artisan with a specialized skill, or that he possessed specialized educational skills. We decline to adopt Respondent's view that a person hired off the street for manual labor should be considered as an independent contractor with a distinct occupation or business for others if that person carries a tool belt and is hired for either one day or two days of manual labor at a construction site, and then also works for Precision and brings his tool belt to Precision's construction site. ¶24 Claimant testified that he was paid $15.00 per hour. Argument by Respondent's counsel is that the one check issued between 2006 and 2010 and money orders issued after the alleged injury show that claimant was paid by the job. Respondent's interpretation of the check and money orders was disputed by claimant. Claimant had an explanation for the amounts of the check and money orders that was consistent with employment status. Even if we assume that Respondent and Precision are correct and claimant was paid by the job, then this would be one factor we consider as part of our analysis and it would not be determinative as implied by Precision before the Workers' Compensation Court.19 Precision's argument interpreting the method of payment is not evidence.20 ¶25 Precision submitted no contract or memo or other writing that served as a direct communication of independent contractor status between Precision and claimant prior to any of the jobs he performed for Precision. Although claimant worked on jobs for Precision from 2006-2010, nothing in the record points to the existence of any contract or memo or other writing that served as a direct communication between Precision and claimant that occurred after any of the jobs he performed for Precision and which also show independent contractor status, except the one 2009 check with the handwritten notation of "Subcontract" in English.21 ¶26 Generally, if the exercise of judicial power is used to adjudicate an issue of fact in the affirmative, then facts must be in the evidence that affirmatively support the decision.22 We have said that a workers' compensation claimant has an initial burden of proving that an injury occurred in the course of employment and arose out of claimant's employment; and we noted that the burden of proof, by a preponderance of the evidence, shall be on the party requesting benefits or relief pursuant to the provisions of the Workers' Compensation Act unless otherwise specifically provided for by law.23 Considering each of the factors on which the evidence was presented leads us to the conclusion that claimant met his burden to show that he was an employee of Precision. ¶27 The opinion of the Court of Civil Appeals is vacated. The order of the three-judge panel of the Worker's Compensation Court is vacated, and the matter is remanded for further proceedings consistent with this opinion. ¶28 ALL JUSTICES CONCUR. FOOTNOTES 1 Claimant's allegation of injury has not been adjudicated because his claim was dismissed on the jurisdictional ground that he was not an employee. 2 Precision was hired by Hoover Construction Co. (Hoover), which was retained by DaVita, Inc., to build a dialysis center in Okmulgee, Oklahoma. 3 Carlock v. Workers' Compensation Commission, 2014 OK 29, ¶ 2, 324 P.3d 408. See also Holley v. Ace American Ins. Co., 2013 OK 88, ¶ 8, 313 P.3d 917, 920, quoting Knott v. Halliburton Services, 1988 OK 29, ¶ 4, 752 P.2d 812, 813 ("The right of an employee to compensation arises from the contractual relationship existing between the employee and the employer on the date of injury, and the statutes then in force form part of that contract and determine the substantive rights and obligations of the parties."); Scruggs v. Edwards, 2007 OK 6, ¶ 7, 154 P.3d 1257, 1261 (same). 4 85 O.S.Supp.2009 § 3 (9) provides in part: "'Employee' means any person engaged in the employment of any person, firm, limited liability company or corporation covered by the terms of the Workers' Compensation Act, and shall include workers associating themselves under an agreement for the performance of a particular piece of work, in which event such persons so associating themselves together shall be deemed employees of the person having the work executed; ...." 5 85 O.Supp.2009 § 3 (11): "'Employment' includes work or labor in a trade, business, occupation or activity carried on by an employer or any authorized voluntary or uncompensated worker rendering services as a firefighter, peace officer or emergency management worker;" 6 85 O.S.Supp. 2009 § 3 (8): " 'Employer', except when otherwise expressly stated, means a person, partnership, association, limited liability company, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association, corporation, or limited liability company, departments, instrumentalities and institutions of this state and divisions thereof, counties and divisions thereof, public trusts, boards of education and incorporated cities or towns and divisions thereof, employing a person included within the term 'employee' as herein defined," 7 See, e.g., Mastin v. Black, 1936 OK 148, 54 P.2d 399, 400 (Because claimant was an independent contractor and not an employee the award was vacated.); Producers' Lumber Co. v. Butler, 1922 OK 307, 209 P. 738, 740 (Court explained that a claimant was an employee of an independent contractor and not an employee of third party). Cf. Okla. Sess. Laws 1919, Ch. 14, p. 25 (S.B. No. 36), Persons Included, editorial annotation explaining the persons covered by the Workers' Compensation Law, and stating that "the Oklahoma Commission holds that an independent contractor is not included." 8 85 O.S.Supp.2009 § 11 (A) & (B)(1) state in part that: "Every employer subject to the provisions of the Workers' Compensation Act shall pay . . . compensation . . . [and] The independent contractor shall, at all times, be liable for compensation due to his or her direct employees ...." 9 Our references to Respondent herein are to both Precision and Respondent unless indicated otherwise, although no appearances by counsel for "Precision" have been made in this proceeding. Counsel for respondent, Hoover Construction, has appeared herein and argued that Precision should not be considered as an employer. It was alleged in the trial tribunal that Precision was a subcontractor of Hoover. It was also alleged in the trial tribunal that Precision did not possess workers' compensation coverage in Oklahoma at the time of claimant's alleged injury. 10 An opinion released for publication by order of the Court of Civil Appeals has persuasive effect, but is not precedential. 12 O.S.Supp.2012 Ch. 15, App. Okla. Sup. Ct. R. .200(c)(2). See also Tubbs v. State ex rel. Teachers' Retirement System of Oklahoma, 2002 OK 79, n.7, 57 P.3d 571, 575; In the Matter of Baby Girl L., 2002 OK 9, n. 6, 51 P.3d 544, 553. 11 Treat and Rivera rely upon our opinion in Bittman v. Boardman Co., 1977 OK 32, 560 P.2d 967, for the long-recognized concept that the Worker's Compensation Court may refuse to give credence to any portion of the evidence. However, Respondent's argument does not utilize the analysis this Court used in Tolbert v. Eastern Contracting, Inc., 1999 OK 23, 978 P.2d 358, to explain the difference between Bittman and Hughes v. Cole Grain Co., 1998 OK 76, 964 P.2d 206, where we reversed an order denying a claim because claimant's proof was not rebutted by any competent evidence. Tolbert, at ¶¶ 16-18, 978 P.2d at 361. Because the scope of our review is dependent upon the jurisdictional nature of the adjudication, we need not address Respondent's argument based upon the principle in Bittman. 12 Triad Transport, Inc. v. Wynne, 2012 OK 30, ¶ 7, 276 P.3d 1013, 1016 ( "This Court has held continuously that a decision of the Workers' Compensation Court concerning a jurisdictional question is reviewed de novo."); Yzer, Inc. v. Rodr, 2012 OK 50, ¶ 3, 280 P.3d 323, 325 ("In workers' compensation cases we are not bound by the lower court's determination of jurisdictional facts. Whether a claimant is acting as an employee at the time of injury is a jurisdictional fact and the Supreme Court will review the record to make an independent finding on that issue."). 13 Brown v. Burkett,1988 OK 49, n.6, 755 P.2d 650, 651. 14 Duncan v. Powers Imports, 1994 OK 126, 884 P.2d 854, 855. See also Garrison v. Bechtel Corp., 1995 OK 2, 889 P.2d 273, 278 (the adjudication whether an employer-employee relationship exists is an adjudication of a jurisdictional fact requiring the exercise of de novo review in this Court where we examine the entire record, weigh the evidence, and make independent fact findings without deference to the fact findings or to the legal rulings made by the compensation court.). 15 Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, ¶ 12, 16 P.3d 450, 455. 16 Swafford v. Sherwin Williams, 1993 OK 141, 863 P.2d 1215, 1217. 17 Mills v. R.T. "Bob" Nelson's Painting Service, 1966 OK 262, 421 P.2d 849 (Respondent did not control or supervise claimant, respondent was furnished estimates of job progress by claimant, respondent paid money to claimant that he paid his workers, and no deductions were made from the money paid by respondent to claimant.). 18 See, e.g., Cattlemen's Steakhouse, Inc. v. Waldenville, 2013 OK 95, 318 P.3d 1105 (person working as a security guard who was also a Deputy Sheriff). 19 While we consider the method of payment when determining employment status, we have also long recognized that payment by the job is not a determinative factor of a person's employment status. See, e.g., Drumright Gas Engine Co. v. Sherrill, 1935 OK 454, 46 P.2d 921, 924, quoting Chicago, R. I. & R. R. Co. v. Bennett, 1912 OK 592, 128 P. 705, 706, 20 A. L. R. 678 ("But the mode of payment is not a decisive test by which to determine this question. The test lies in the question whether the contract reserves to the proprietor the power of control over the employee. That the mere fact that the work being performed by an employee at the time he was injured was done by the piece or job, as by payment of a stated price for each car when loaded, does not deprive him of the character of an employee, where he was a mere servant carrying out the employer's will and instructions."). 20 Generally, argument of counsel is not a form of evidence. In re Guardianship of Stanfield, 2012 OK 8, n. 55, 276 P.3d 989, 1002 (unsworn statements by counsel do not constitute evidence); Willis v. Sequoyah House, Inc., 2008 OK 87, ¶¶ 12-13, 194 P.3d 1285, 1289-1290 (same). 21 For example, independent contractors and their customers often, but not always, communicate with each other, and this communication may show the nature of the relationship. See, e.g., Swyden Const. Co. v. White, 1963 OK 162, 383 P.2d 674 (an independent contractor may bill his or her client); Mills v. R.T. "Bob" Nelson's Painting Service, 1966 OK 262, 421 P.2d 849 (an independent contractor may furnish to a customer estimates of progress in the work due to the lack of direct supervision and control of the work). 22 Christian v. Gray, 2003 OK, 10, ¶ 44, 65 P.3d 591, 609. Of course, an adjudication of an issue of fact in the negative may be based upon an entire absence of proof, or a failure to prove one or more required elements necessary to establish a fact. See, e.g., State v. Price, 2012 OK 51, ¶ 33, 280 P.3d 943, 953 (a demurrer to the plaintiff's evidence should be sustained only when there is an entire absence of proof); Silk v. Phillips Petroleum Co., 1988 OK 93, 760 P.2d 174, 180 (absence of one element of fraud will defeat fraud claim). 23 Davis v. Southwestern Bell Telephone, 2006 OK 48, ¶ 15, & n.7, 139 P.3d 892, 896, citing 85 O.S. Supp.2005 § 1.1(B). See also Swyden Const. Co. v. White, 1963 OK 162, 383 P.2d 674, 675 (The existence of an employee-employer relationship constitutes a primary prerequisite to an award, and claimant has the burden to establish the status of an employee in relation to the person against whom a claim is asserted.).

942a3148-caf5-4f54-aa65-b48bd1af4916

EDWARDS v. CITY OF SALLISAW

oklahoma

Oklahoma Supreme Court

EDWARDS v. CITY OF SALLISAW2014 OK 86Case Number: 112132Decided: 10/21/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SHALOA EDWARDS, individually, Plaintiff/Appellee,v.CITY OF SALLISAW, a municipal corporation, SHANNON VANN, in his capacity as mayor of Sallisaw, Oklahoma, and BILL BAKER, in his capacity as city manager of Sallisaw, Oklahoma, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURT OF SEQUOYAH COUNTYTHE HONORABLE HOLLI A. WELLS, PRESIDING ¶0 Plaintiff Shaloa Edwards brought an action for declaratory and injunctive relief against the City of Sallisaw, the city manager, and the mayor. Plaintiff was the elected police chief of Sallisaw, Oklahoma, and just prior to Plaintiff instituting this action, the board of commissioners passed an ordinance removing Plaintiff's supervisory and management authority over the police department. The district court found that the ordinance improperly removed the police chief's authority to supervise and manage the police department and deprived the police chief of his due process protections by circumventing statutory and local removal procedures and effectively removing him from office. This Court previously retained the appeal. DISTRICT COURT ORDER VACATED; REMANDED WITH INSTRUCTIONS. John Robert Montgomery, Montgomery and Montgomery, P.C., Sallisaw, Oklahoma, for the defendants/appellants. Sam Sexton, III, McCutchen & Sexton, Fort Smith, Arkansas, for the plaintiff/appellee. TAYLOR, J. I. ISSUES ¶1 The question before this Court is whether a city charter which directs the city board of commissioners to set the powers and duties of an elected police chief allows the board to limit those powers and duties by removing the police chief's supervisory and management authority over the police department by ordinance. We answer this question in the affirmative. II. PROCEDURAL HISTORY ¶2 Plaintiff, Shaloa Edwards, the elected police chief,1 filed a petition for declaratory and injunctive relief against the mayor, city manager, and City of Sallisaw (collectively "Defendants"). Edwards asked the Sequoyah County District Court to invalidate and enjoin the enforcement of Ordinance 2013-01, which removed his authority to supervise and manage the police department. The Defendants jointly filed a motion for summary judgment. The district court held a summary-judgment hearing and heard witness testimony. All parties then submitted post-hearing briefs in lieu of argument at the hearing. The district court denied the Defendants' summary-judgment motion and issued a permanent injunction against the enforcement of Ordinance 2013-01. The Defendants then filed their petition in error. This Court retained the appeal. III. FACTUAL RECORD ¶3 The facts are undisputed. The City of Sallisaw, Oklahoma, (Sallisaw), is organized as a municipal corporation through a city charter. The charter establishes a commissioner-manager form of government, vesting "all powers of the City of Sallisaw . . . in and exercised by an elective board of commissioners." Charter of the City of Sallisaw, Oklahoma, art. I, § 3. The police chief is elected, but has a limited set of enumerated charter powers. Id. art. III. All other police-chief duties and responsibilities are set by city ordinance--a charter duty that falls to the board of commissioners: The Chief of Police shall enforce the municipal ordinances and the laws and Constitution of the State of Oklahoma and shall have such other powers, duties and functions as may be prescribed by ordinance. Id. art. III, § 3. ¶4 The people of Sallisaw elected Edwards as police chief in 2005 and reelected him in 2008 and 2011. Upon his election, Edwards had the following duties as set by the Sallisaw Board of Commissioners: There is a police department, the head of which is the chief of police, or police chief. The chief of police is an officer of the city, and has supervision and control of the police department. All police officers are officers of the city. City of Sallisaw Code of Ordinances, pt. II, ch. 54, art. II, § 54-31 (repealed 2013). Edwards supervised and managed the Sallisaw Police Department following this grant of authority from the date of his initial election until the ordinance was repealed. ¶5 The board of commissioners met publicly on February 11, 2013, having earlier provided notice of the meeting at city hall, to the local newspaper, and to the city clerk. Edwards received a copy of the meeting agenda prior to February 11th. At the meeting, the board of commissioners discussed a proposed ordinance to repeal and replace section 54-31. Ordinance No. 2013-01 revised the distribution of authority to manage and supervise the police department: The Chief of Police is an officer of the City and is authorized to supervise and manage the Police Department; however, the City Manager may assume supervision and management of the Police Department, if the Board of City Commissioners deem [sic] it in the best interest of the City. City of Sallisaw Code of Ordinances, Ordinance No. 2013-01 (Feb. 11, 2013) [enacted as Sallisaw Code of Ordinances, pt. II, ch. 54, art. II, § 54-31].2 At the February 11th meeting, Edwards addressed the board of commissioners and presented his case against the proposed ordinance. After Edwards finished, the board of commissioners passed and enacted the new ordinance; a commissioner then moved for the board to assign responsibility for supervising and controlling the police department directly to the city manager for 90 days. The board of commissioners passed the motion. ¶6 After February 11, 2013, the Sallisaw City Manager supervised and managed the Sallisaw Police Department, but Edwards retained the title of police chief. Edwards also continued to receive the police-chief salary, and he was able to enforce laws and ordinances, use the police-chief office, wear the uniform, carry a weapon, make arrests, and assist in the formulation of the department's budget with the city manager. The city manager appointed a captain on the police force as supervisor for day-to-day operations; the captain in turn reported to the city manager. The police captain did not supervise Edwards. IV. STANDARD OF REVIEW ¶7 Summary judgment settles only questions of law. See Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. The standard of review of questions of law is de novo. Id. Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. n.1. Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts. See Runyon v. Reid, 1973 OK 25, ¶ 15, 510 P.2d 943, 946. V. ANALYSIS A. Edwards's Allegations ¶8 Edwards claimed in his district-court petition that the board of commissioners usurped the inherent authority of the police chief by removing the chief's ability to supervise and manage the police department. Edwards alleged that as an elected official, he retained the ability to manage and supervise the police department despite those duties not being explicitly set out in the city charter. Edwards also argued to the district court that the Defendants violated his due process protections--Ordinance 2013-01 functionally removed him from office without following the procedures outlined by city ordinance or state statute. We address Edwards's arguments in turn. B. Construction of Sallisaw's Municipal Charter ¶9 A municipal charter is a home-rule city's governing constitution.3 We will look to rules of construction for constitutions in our analysis of the Sallisaw charter. As with Oklahoma's own governing document, we strictly construe a charter's terms to give effect to the intent of the framers and the people adopting it. Latting v. Cordell, 1946 OK 217, ¶ 0, 172 P.2d 397, 397 (Syllabus by the Court 1). If the terms are "plain and unambiguous," the meaning and intent of the document is found on its face "without resort to judicial rules" of construction. See Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 6, 123 P.3d 5, 6-7. We look for the document's intent "in the instrument itself," and we must not "search for . . . meaning beyond the instrument." Latting, 1946 OK 217, ¶ 0, 172 P.2d at 397 (Syllabus by the Court 1). ¶10 The Oklahoma Constitution empowers Oklahoma citizens who live in municipalities exceeding 2,000 people to "frame a charter for [their] own government, consistent with and subject to the Constitution and laws of this State." Okla. Const. art. 18, § 3(a). The municipal charter then becomes the "organic law of the city." Caruth v. State ex rel. Tobin, 1923 OK 980, ¶ 4, 223 P. 186, 187; In re Initiative Petition, 1923 OK 199, ¶ 5, 214 P. at 187. Article 18 of the Oklahoma Constitution gives governing and legislating power to these municipalities, commonly referred to as home-rule cities. In fact, municipal law "supersede[s] the laws of the state in conflict therewith, in so far as such general laws attempt to regulate purely municipal matters." City of Sapulpa v. Land, 1924 OK 92, ¶ 8, 223 P. 640, 642. But this Court has demarcated this principle--municipal authority can be overcome despite "chiefly local interest" if "the state has a sovereign interest" in the municipal matter. Thurston v. Caldwell, 1913 OK 714, ¶ 10, 137 P. 683, 687. ¶11 With the approval of a municipality's charter, the state has surrendered a portion of its authority by giving home-rule cities sovereignty over their "municipal affairs." Moore v. Oklahoma City, 1927 OK 49, ¶ 16, 254 P. 47, 51. The line between a chiefly municipal affair and a sovereign state interest is not well illuminated. We have recognized specific issues that are of sovereign state interest, including taxation,4 public education,5 control and regulation of public highways,6 and "state control over local police protection."7 This Court has carved out certain duties and responsibilities of municipal police officers that are of state concern; but we have also left a significant degree of autonomy to home-rule cities to control their police departments.8 We find where to draw the line in relation to what a home-rule city can authorize by city charter, including the duties and authority of a police chief, from precedent and statutes. We now turn to our jurisprudence. ¶12 In State ex rel. Burns v. Linn, 1915 OK 1037, 153 P. 826, this Court held that the state has a "sovereign interest in the enforcement of its general laws against the traffic in intoxicating liquors, against gambling and prostitution, within the territorial limits of the city of Tulsa." Id. ¶ 0, 153 P. at 826 (Syllabus by the Court 3). It was alleged by grand jury that the police chief in Tulsa (a home-rule city) allowed, or failed to enforce the laws against, gambling, liquor, and prostitution. Id. ¶ 1, 153 P. at 827. This Court ruled that enforcement of laws relating to the prohibition against liquor, prostitution, and gambling were not merely municipal in nature as the laws "operate[d] throughout the entire state . . . and are matters in which every citizen of the state has an interest." Id. ¶ 8, 153 P. at 829. A municipality cannot maintain sole control over the duties and powers of its police chief to enforce state laws restricting intoxicating liquor, gambling, and prostitution; these are state interests, controlled by statute, that a city charter cannot co-opt. ¶13 Twelve years later, this Court decided Moore, 1927 OK 49, 254 P. 47, where the City of Oklahoma City passed an amendment to its city charter to transform the city from a commission form of government to a managerial form of government. Id. ¶ 15, 254 P. at 50. Albeit briefly, this Court addressed a concern for our purposes: did the city manager's power to hire and fire the police chief and other officers under the new managerial form of government, solely vested in the manager, infringe on matters which were state concerns, rather than purely local matters. Id. ¶¶ 17-18, 254 P. at 51. This Court answered in the negative and affirmed the city's authority to set the powers of a city manager and a local police chief by charter: [U]nder any form of city government, the city police force must necessarily co-operate with the peace officers of the state in keeping the peace of the state, and we see nothing in this feature of the proposed amendment which conflicts with such principle. Id. ¶ 18, 254 P. at 51. In keeping with Linn, a city charter can set duties of its city manager and city police chief, but a charter cannot supersede the statutory duty of the municipal police chief to uphold the laws of the state. ¶14 Moore and Linn create a framework for what duties a home-rule city can set by charter for its police chief.9 A municipality cannot alter its duty to enforce enumerated state laws and the Oklahoma constitution by city charter.10 But we have allowed home-rule cities leeway to set the duties of police chiefs beyond the enforcement of state laws and ordinances. We must also look to statutes for other enumerated police-chief duties. The Legislature has vested three specific duties in the position of police chief: (1) the authority "to dispose of personal property or money or legal tender . . . which has come into the possession of the chief of police in any matter"; (2) the ability to appoint "reserve municipal police officers"; and (3) the duty to enforce state laws and municipal ordinances. 11 O.S.2011 §§ 34-104, 34-101(A), 34-102(A).11 The Legislature has not vested any other responsibilities or duties in municipal police chiefs. ¶15 We have not before interfered with a home-rule city's right to set the administrative day-to-day duties of its police chief. And without the Legislature delineating specific duties for police chiefs to manage and supervise the police department, we will not create one here. We read article III, section 3 of the Sallisaw city charter strictly as its language is plain and unambiguous. Under the city charter, a police chief can freely enforce local ordinances and state laws--any other duty must be found in state statute or Sallisaw's ordinances. Ordinance 2013-01 properly followed the requirements of the city charter by setting the powers and duties of the Sallisaw police chief--even if those duties and responsibilities were minimal. Even after Ordinance 2013-01 was enacted, Edwards retained the title, salary, office, and uniform of the Sallisaw Chief of Police. The Sallisaw charter empowers the board of commissioners to set all powers and duties of the Sallisaw police chief not detailed in the city charter by ordinance. Ordinance 2013-01 properly sets out those duties and responsibilities of the Sallisaw chief of police.12 C. Removal of a Police Chief's Inherent Powers ¶16 Edwards contends that an elected police chief has inherent powers to supervise and manage a police department. Drawing his support from his definition of police chief, defining the phrase as one who supervises and manages a department, Edwards asks this Court to recognize that elected police chiefs have inherent authority to manage and supervise the department without interference from other local municipal powers. ¶17 Edwards's contention directly contradicts the plain language of the Sallisaw city charter. The language is unambiguous. The charter solely directs the board of commissioners to set all powers and responsibilities of the police chief by ordinance (with the exception of those defined by statute). Municipal officers can only exercise powers which are "expressly granted or necessarily to be inferred as incidental to those expressly granted." Nottingham v. City of Yukon, 1988 OK 130, ¶ 5, 766 P.2d 973, 974-75.13 The duty to supervise and manage the police department is not express in the charter. The plain language of the charter also leads us to conclude that the power to manage and supervise the police department is not necessarily to be inferred as incidental to the police chief's charter powers.14 The plain language expressly vests only one duty--enforcement of state law and municipal ordinances--with the police chief. For us to find that the duty to manage and supervise the police department can be inferred as incidental to the charter's one express power would be a violent misreading of the plain language of article III, section 3 of the charter. Any additional authority not found in statutes for the police chief can be found only in city ordinances. Edwards fails to point us to any authority that would support his contention that the police chief has inherent authority to supervise and manage the police department. We reject the contention that the Sallisaw Chief of Police has inherent authority to supervise and manage the Sallisaw Police Department. D. Violations of Edwards's Due Process Protections ¶18 The district court ruled that the Defendants violated Edwards's procedural protections under both state law and local ordinances by ousting him from office. The Sallisaw Chief of Police can be removed from office by recall election or for cause, which is a method detailed by statute. Charter of the City of Sallisaw, Oklahoma, art. VI, § 1.; id. art. III, § 5; 11 O.S.2001 § 8-107. Both processes for removal require the city to follow specific procedures. Sallisaw did not initiate either process. But neither process was required as Edwards was not removed from office. He did not lose his position as chief of police, and he retained his salary and other privileges of the position. We reject Edwards's argument that Ordinance 2013-01 was an end-around the mandated procedures in the city charter and applicable state statutes to remove an elected official from office. ¶19 Edwards implicitly argues that the defendants denied him due-process protection under the United States and Oklahoma Constitutions for the removal of the ability to supervise and manage the police department--what he appears to claim is a property right under both constitutions. Edwards does not point us to any authority to support his argument. "The due process clauses of the United States and Oklahoma Constitutions provide that citizens cannot be deprived of their rights to life, liberty or property without first receiving notice and a meaningful opportunity to appear and be heard." Daffin v. State ex rel. Okla. Dep't of Mines, 2011 OK 22, ¶ 16, 251 P.3d 741, 746; see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). We have specifically ruled in the context of teacher tenure that a teacher has a property right in continued employment, but does not have a property right in a specific position. Maupin v. Indep. Sch. Dist. No. 26, 1981 OK 90, ¶ 4, 632 P.2d 396, 399. By analogy, Edwards has no property right in any job duty that may have been associated with the Sallisaw Chief of Police at one time. Edwards continued on as police chief and retained the emoluments of office. We reject Edwards's contention that he had a property right to supervise and manage the Sallisaw Police Department. ¶20 The process Edwards was afforded by the Sallisaw Board of Commissioners complied with due-process protections even though a property right was not implicated. Due-process protections require notice and "the opportunity to be heard in a meaningful time and in a meaningful manner." Flandermeyer v. Bonner, 2006 OK 87, ¶ 10, 152 P.3d 195, 198-99; Loudermill, 470 U.S. at 541. The Sallisaw Board of Commissioners publicly discussed Ordinance 2013-01 on February 11, 2013. Notice of the meeting was provided to Edwards. At that meeting, the board of commissioners allowed Edwards to speak at length regarding the proposed ordinance and his duties as police chief. "Due process requires an orderly proceeding adapted to the case in which the parties have an opportunity to be heard, and to defend, enforce and protect their rights." Malone v. Malone, 1979 OK 21, ¶ 4, 591 P.2d 296, 298. Here, Edwards was given adequate notice and the opportunity to be heard. The Defendants did not violate Edwards's procedural due process protections. And Edwards's arguments of due process violations for failure to follow stated policies are unpersuasive as we have already ruled that Edwards was not ever removed from office; he retained the position and salary of police chief after the board of commissioners enacted Ordinance 2013-01. VI. CONCLUSION ¶21 A home-rule city has a sovereign right to govern itself in purely municipal matters. Here, the Sallisaw Board of Commissioners had the ability to set out the duties and authority of a police chief's day-to-day responsibilities. The Legislature has given leeway to home-rule cities to craft these day-to-day duties and responsibilities. We will not question how a city charter allocates the authority to set the police chief's duties and responsibilities if not contrary to statute, precedent, or Constitution. An ordinance may establish those duties and responsibilities as long as the ordinance comes from a grant of authority in the city charter. The Sallisaw city charter grants that authority to the board of commissioners. The district court's order and permanent injunction is vacated. We remand this appeal to the district court for proceedings consistent with this opinion. DISTRICT COURT ORDER VACATED; REMANDED WITH INSTRUCTIONS. COLBERT, C.J.; REIF, V.C.J.; AND WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, AND GURICH, JJ., CONCUR. KAUGER, J., CONCURS IN RESULT. FOOTNOTES 1 Edwards retired as Sallisaw Chief of Police on November 30, 2013. This Court denied Edwards's motion to dismiss the appeal as moot. We only dismiss an appeal as moot where no relief can be granted. Westinghouse Electric Corp. v. Grand River Dam Auth., 1986 OK 20, ¶ 17, 720 P.2d 713, 718. 2 Ordinance No. 2013-01 included an emergency clause which made it effective upon its passage and approval. City of Sallisaw Code of Ordinances, Ordinance No. 2013-01 (Feb. 11, 2013) [enacted as Sallisaw Code of Ordinances, pt. II, ch. 54, art. II, § 54-31]. 3 In re Initiative Petition on Proposed Charter for City of Okmulgee, 1923 OK 199, ¶ 9, 214 P. 186, 187; see Maurice H. Merrill, Constitutional Home Rule for Cities: Oklahoma Version, 5 Okla. L. Rev. 139, 150 (1952) ("[T]he charter of a home rule city is its constitution, and that such a charter is a grant of power from the state to the city.") (footnote omitted) (internal quotation marks omitted). 4 Land, 1924 OK 92, ¶ 21, 223 P. at 643 ("[I]t must be borne in mind that such municipalities, in exercising the power of taxation, become involved in a matter under our system of government, which is the proper subject of constitutional and general law. This, for the reason that the exercise of the arbitrary power of taxation is subject to the regulation of the supreme sovereign power, which in such case is the state."); Thurston, 1913 OK 714, ¶ 10, 137 P. at 686 (identifying a state interest in state control over "local taxation for streets, highways, and bridges; state control over local taxation for schools; [and] state control over local taxation for the public health"). 5 Bd. of Educ. of City of Ardmore v. State ex rel. Best, 1910 OK 118, ¶ 0, 109 P. 563, 563 (Syllabus by the Court 1). 6 Constant v. Brown, 1941 OK 205, ¶ 0, 114 P.2d 477, 477 (Syllabus by the Court 1) ("Control and regulation of the public ways of a municipality are reserved to the State, and such powers may be exercised by the municipality only to the extent of the authority to that end delegated by the Legislature."). 7 Thurston, 1913 OK 714, ¶ 10, 137 P. at 686. 8 Compare State ex rel. Burns v. Linn, 1915 OK 1037, ¶ 0, 153 P. 826, 826 (Syllabus by the Court 3), with Moore, 1927 OK 49, ¶ 18, 254 P. at 51. 9 City of Durant v. Cicio, 2002 OK 52, 50 P.3d 218, is distinguishable here in the context of police protection in home-rule cities. For recent precedent to distinguish Cicio, see City of Jenks v. Stone, 2014 OK 11, ¶ 20, 321 P.3d 179, 185. In Cicio, the City of Durant was not a home-rule city, but organized and run by state statutes. Cicio, 2002 OK 52, ¶ 6, 50 P.3d at 220. 10 We have refused to allow home-rule municipalities to outlaw what a state statute has specifically allowed as a sovereign state interest. Sparger v. Harris, 1942 OK 418, ¶ 19, 131 P.2d 1011, 1014 (invalidating a city ordinance which outlawed the sale of 3.2 beer on Sunday as a state statute explicitly allowed its sale). It must be noted that where a charter conflicts with a statute, a charter may supersede the statute if "[i]t in no manner interferes with or infringes upon matters of the state at large, or affects its people generally; and, in the absence of such provision of the charter being in conflict with any provision of the Constitution, it supersedes the statute." Lackey v. State ex rel. Grant, 1911 OK 270, ¶ 20, 116 P. 913, 918; see City of Muskogee v. Senter, 1939 OK 375, ¶ 13, 96 P.2d 534, 535 ("In this jurisdiction, however, cities may adopt charters containing provisions not in accord with the general law and in so far as such charter provisions conflict with the state law on subjects relating to purely municipal matters, the state law is thereby superseded."). 11 As the day-to-day responsibilities of a police chief are not set out by charter, we need not analyze whether the Sallisaw city charter supersedes any existing state statute. See Lackey, 1911 OK 270, ¶ 20, 116 P. at 918. 12 The district court ruled that because the emergency motion placing supervision and control of the police department in the city manager was authorized for only 90 days, after the expiration of 90 days, Edwards was reinstated as police chief. As Edwards was never removed from his elected position, he cannot be reinstated. We summarily dismiss Edwards's argument that he was reinstated after the 90-day motion expired. 13 In Nottingham, we refused to find that the city manager had inherent power to "settle and compromise claims" when the city charter was silent. 1988 OK 130, ¶ 5, 766 P.2d at 974-75. The Yukon city charter allowed the city to settle and compromise claims, but the charter did not grant that power to the city manager. We held that the power to settle claims was not "incidental to the city manager's administrative power to hire and fire." Id. ¶ 5, 766 P.2d at 975. 14 The Supreme Court has long refused to rewrite city charters to create inherent powers in city officials. City of Muskogee v. Senter, 1939 OK 375, ¶ 15, 96 P.2d 534, 535-36. In Senter, this Court refused to read the Muskogee city charter as placing "dictatorial powers" in the mayor to sign contracts without the approval of the other required authorities. Id. To find these inherent powers as created in the city charter was to do "violence to its natural meaning." Id.

865d1a3f-be07-4f5a-bf07-9f2b68672b08

Chandler v. Valentine

oklahoma

Oklahoma Supreme Court

CHANDLER v. VALENTINE2014 OK 61Case Number: 108614Decided: 06/24/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Tracey Chandler, Personal Representative of the Estate of David Wurtz, deceased, Plaintiff/Appellee, v. Mark W. Valentine, MD and Idabel Surgical Clinic, a professional corporation, Defendants, and Physicians Liability Insurance Company, Garnishee/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS Division II ¶0 Medical malpractice insurer brought an appeal from a summary judgment granted to the personal representative of the estate of a deceased patient by the Honorable Willard Driesel, District Court of McCurtain County. The Court of Civil Appeals reversed the summary judgment and remanded the matter with instructions to enter judgment for the insurer. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; JUDGMENT OF TRIAL COURT AFFIRMED. Glendell Nix, NIX LAW GROUP, PLLC, Edmond, Oklahoma and Jeremy Thurman, Oklahoma City, for Plaintiff/Appellee. Robert N. Naifeh, Jr., Sarah Lee Gossett Parrish, DERRYBERRY & NAIFEH, LLP, Oklahoma City, for Garnishee/Appellant. COLBERT, C.J. ¶1 The issue in this matter is whether an insurer may agree to cancel a "claims made" policy with the knowledge that a potential claim is pending without violating the statutory prohibition on retroactive annulment of an insurance policy following the injury, death, or damage for which the insured may be liable. See Okla. Stat. tit. 36, § 3625 (2011). This Court holds that it may not and affirms the holding of the trial court. FACTS AND PROCEDURAL HISTORY ¶2 Physicians Liability Insurance Company (PLICO) insured Defendant Mark Valentine pursuant to a claims made policy with a policy period from July 1, 2004, to December 31, 2006. On November 1, 2004, Valentine operated on David John Wurtz. As a result of Valentine's negligence during the operation, Wurtz died. On March 10, 2005, the Oklahoma Board of Medical Licensure held a hearing to determine whether Valentine should be disciplined. At the hearing, the Board revoked Valentine's license. ¶3 On March 14, 2005, Valentine sent a letter to his insurance agency which provided in part: As we discussed, I last practiced on November 2, 2004, secondary to health reasons. In December 2004, I renewed my liability insurance policy for 2005, anticipating that I would return to the practice some time within the first several months of this year. This will not be the case, secondary to my licensure having been revoked in the state of Oklahoma. Because of the circumstances and the unexpected financial hardship as a result, I respectfully request that my policy for 2005 be cancelled, and I also request a consideration of receiving a refund of the premium value having been paid for the year 2005. In December, $6,870.60 was paid as an initial payment for the 2005 policy and in February another $4,436.85 payment was made. A few days later, the agency forwarded the letter to PLICO along with a newspaper article dated March 12, 2005, that stated in part: The Oklahoma State Board of Medical Licensure and Supervision on Thursday also revoked the license of Idabel physician Dr. Mark Valentine . . .. . . . . Valentine of Idabel was cited for performing surgery while impaired by the pain medication Vicodin at McCurtain Memorial Hospital. The Oklahoma medical board found Valentine guilty of unprofessional conduct, and his medical license was revoked. He can reapply in one year. PLICO's Vice-President of Underwriting would later state in his deposition that, at the time PLICO cancelled the policy, he was aware of the article and considered the fact that Valentine was no longer licensed in PLICO's decision to cancel the policy. ¶4 On March 22, 2005, PLICO notified Valentine by letter that the policy had been cancelled effective March 10, 2005, with "Company's Decision" stated as the reason for cancellation and offered to sell him tail coverage. That letter was followed by another that addressed the premium refund issues and stated that the policy had been cancelled at Valentine's request.1 On June 2, 2005, Wurtz' personal representative, Tracey Chandler, filed suit against Valentine and others for the wrongful death of Wurtz. Valentine forwarded the petition and summons served on him to PLICO on July 12, 2005. On July 19, 2005, PLICO sent Valentine a letter denying coverage because the claim was not made until after the policy was cancelled and asserting the policy exclusion for acts performed while under the influence of intoxicating substances.2 ¶5 Valentine's debts were discharged in bankruptcy on February 1, 2006. Chandler filed a motion for summary judgment against Valentine in August of 2007. Valentine entered into a Consent Judgment with Chandler on December 5, 2007, in the amount of $2,250,000.00. The trial court granted summary judgment in favor of Chandler and ruled that Valentine was entitled to a set off by virtue of settlements with other parties in the amount of $1,275,000.00 ¶6 Chandler filed garnishment proceedings against PLICO in May of 2008. Chandler asserted that Valentine is indebted to Chandler in the amount of $975,000.00 plus pre and post judgment interest. PLICO denied any indebtedness asserting a lack of coverage under any insurance policy. Both Chandler and PLICO filed motions for summary judgment in the garnishment action. On July 16, 2010, the trial court entered summary judgment in favor of Chandler, holding that cancellation of the policy violated section 3625 of title 36 and was therefore void. STANDARD OF REVIEW ¶7 A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Okla. Stat. tit. 12, § 2056(C) (2011). ANALYSIS ¶8 Resolution of this matter requires an understanding of a "claims made" policy of liability insurance. Under a claims made policy, coverage is only triggered when, during the policy period, an insured becomes aware of and notifies the insurer of either claims against the insured or occurrences that might give rise to such a claim. . . . In a 'claims made' policy, the notice is the event that invokes coverage under the policy. Clear notice of a claim or occurrence during the policy period is crucial, because allowing actual notice beyond the policy period would 'constitute an unbargained for expansion of coverage, gratis, resulting in the insurance company's exposure to a risk substantially broader than that expressly insured against in the policy.' [citations omitted] Claims made policies are often a more economical way to provide coverage for risks like professional responsibility, because the notice requirements allow an insurer to 'close its books' on a policy at the expiration date and thus 'attain a level of predictability unattainable under standard occurrence policies.' [citations omitted] . . . Such a policy reduces the potential exposure of the insurer, thus reducing the policy cost to the insured. State ex rel. Crawford v. Indemnity Underwriters Ins. Co., 1997 OK CIV APP 39, ¶ 4, 943 P.2d 1099 (quoting LaForge v. Am. Cas. Co., 37 F.3d 580, 583 (10th Cir. 1994). ¶9 "Occurrence liability policies, on the other hand, allow for notice after the term of the insurance contract, so long as the insurable event occurred during the term, because these policies historically covered identifiable events such as collision, fire and war." Id., ¶ 5. "Notice provisions contained in such occurrence policies were 'included to aid the insurer in investigating, settling, and defending claims,' not as a definition of coverage." Id. (quoting Slater v. Lawyer's Mut. Ins. Co., 227 Cal. App. 3d 1415, 1422, 1423, 278 Cal. Rptr. 479 (1991)). ¶10 The principal advantage of the claims made policy for insurers is the avoidance of "tail liability" during the lapse of time between the date of the liability-producing event and the date of the claim. Carolyn M. Frame, 'Claims-Made' Liability Insurance: Closing the Gaps with Retroactive Coverage, 60 Temple L.Q. 165, 166 & n.7 (1987). Thus, in a claims made policy the risk of tail liability is borne by the insured, absent the purchase of tail coverage for claims filed after the cancellation or termination of a policy. Id. at 182. However, insurers and policies of insurance are at all times subject to the regulation and limitations imposed by the Oklahoma Insurance Code which constitutes all of title 36 of the Oklahoma Statutes. Okla. Stat. tit. 36, § 109 (2011) ("No person shall transact a business of insurance in Oklahoma without complying with the applicable provisions of this Code."). ¶11 The question in this matter is whether section 3625 of the Insurance Code applies to a claims made policy. The section provides: No insurance contract insuring against loss or damage through legal liability for the bodily injury or death by accident of any individual, or for damage to the property of any person, shall be retroactively annulled by any agreement between the insurer and the insured after the occurrence of any such injury, death, or damage for which the insured may be liable, and any such attempted annulment shall be void. Okla. Stat. tit. 36, § 3625 (2011). The provision dates to the enactment of the Insurance Code in 1957. ¶12 PLICO argues that, because the provision predates the wide-spread adoption of claims made policies in Oklahoma, the provision could not have been intended to apply to claims made policies. PLICO further argues that, because the provision makes the "occurrence" of damage or injury the event that triggers its operation, it must be intended to apply only to occurrence policies. ¶13 The primary goal of any statutory analysis is the determination of legislative intent which begins with an examination of the text of the provision. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15. The text of section 3625 clearly applies to all contracts that provide insurance coverage for damage, injury, or death. The provision's focus is the protection of injured third parties, not on policy provisions. It limits the ability of the parties to an insurance contract to manipulate the term of policy coverage in a way that deprives an injured third party from asserting a claim. The Oklahoma Legislature has not amended the statute since its adoption in 1957 to limit its operation to occurrence policies and it is not within this Court's purview to do so. However, the difference in the nature of the risks protected by claims made versus occurrence policies requires a slightly different application of the provision to claims made policies. ¶14 As to an occurrence policy, the provision is straightforward because the date of occurrence is fixed by the liability-producing event and no agreement to cancel a policy may cut off the right to recover under the policy. Under a claims made policy, however, the date of the claim is unknown and liability generally does not attach until a claim is submitted by the insured. Therefore, section 3625 applies to a claims made policy only when there is an agreement to cancel the policy in a way that cuts off a potential claim and the insurer is actually aware3 at the time of agreement of the act or acts that will potentially result in a claim.4 Thus, the question in this matter becomes whether there was an agreement between the insured and the insurer to cancel the policy and whether PLICO knew of the alleged malpractice that could lead to a claim against the policy. ¶15 Faced with difficulty maintaining adequate reserves, PLICO converted its occurrence policies to claims made policies effective July 1, 2004. Under the claims made policies, physicians who wanted to continue PLICO coverage had to agree to thirty-month policies that could be cancelled only in the event of moving the medical practice out of state, death, disability, or retirement. There was no provision for cancellation based on the revocation of a medical license and the parties agree that Valentine had no right to cancel the policy. The parties disagree as to the effect of Valentine's lack of right to cancel the policy. PLICO urges that Valentine's inability to cancel the policy establishes that the cancellation was the unilateral act of the insurer.5 PLICO's argument ignores the obvious; there was an agreement between the insured and the insurer to cancel the agreement. ¶16 The evidentiary materials attached to the personal representative's motion for summary judgment clearly establish that a written offer was made by the insured to cancel the policy and obtain a refund of policy premiums. It is equally clear that PLICO accepted that offer with actual knowledge of the events that would certainly generate a wrongful death action against the insured. The agreement to cancel, however, was squarely within the statutory prohibition on annulment contained in section 3625 and thus it was void. The policy remained in effect in July, 2005, when the wrongful death action was filed. PLICO's conduct in cancelling the policy, when it knew that the actions of its insured during the policy period would be the basis of an impending claim, indicates, at best, ignorance of the section 3625 prohibition. At worst, it indicates collusion with its insured to deprive the decedent's estate of the benefits of coverage. The trial court was correct to grant summary judgment to the personal representative of the estate. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; JUDGMENT OF TRIAL COURT AFFIRMED. CONCUR: Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, Gurich, JJ. DISSENT: Winchester, Taylor, Combs, JJ. FOOTNOTES 1 The letter stated: This letter will serve to advise you that we have cancelled your professional liability policy effective March 10, 2005 per your request as well as the request of your agent, OHA Insurance Agency. Please note that you signed a 30 month commitment with PLICO on June 22, 2004 and the policy referenced above indicated the cancellation provisions. It also indicated that the premiums for 2005 would be fully earned under your cancellation situation. When your policy was cancelled by PLICO and the cancellation notice was processed by A. I. Credit based on payments made to date, there was a return premium of $1,986.67. However, the 2005 premium was full[y] earned by PLICO and you would actually owe the remaining premium for 2005 which would total $37,147. Due to your situation, PLICO is agreeable to applying the $1,986.67 toward the fully earned premium amount of $37,147 and forgiving you for the remaining balance of $35,183.33. Also, PLICO is forgiving you of your 2006 premium which is a part of the same commitment. Should you ever desire to have insurance again with PLICO and PLICO agrees to provide you professional liability coverage, the forgiven amount must be paid in addition to any premiums generated by the new policy. This issue arises out of the 30 month commitment that you signed as referenced above and a copy is attached for your review. 2 In its order granting the summary judgment that is the subject of this appeal, the trial court found: PLICO fails to offer any evidence that Dr. Valentine was in fact under the influence at the time of the event which gives rise to the medical negligence claim which is the subject of the judgment. PLICO has further failed to show a causal connection between Dr. Valentine's ingestion of Vicodin and the death of Mr. Wurtz. 3 Notice of existence of a potential claim for the purpose of application of section 3625 need not satisfy the reporting provisions of the policy. Section 3625 addresses agreements to cancel coverage, not the duties of the parties to the insurance contract concerning notice of a claim. An insurer's lack of notice of a potential claim may be a basis for denying coverage. It is not, however, a legitimate basis for cancellation of a policy when it has actual knowledge of a potential claim. 4 This Court acknowledges the decision of the Washington Supreme Court in Am. Cont'l Ins. Co, v. Steen, 91 P.3d 864 (Wash. 2004), which construed a Washington provision that is identical to Oklahoma's section 3625 under very similar facts. The decision appears to be the first and only published decision to apply the provision to a claims made policy. That court held that its provision was not limited to occurrence policies and therefore the claims made policy could not be cancelled after the occurrences which led to a patient's death. Today's holding in this matter is less broad as to a claims made policy. Today's decision acknowledges that the risk in a claims made policy is the risk of a claim, not the occurrence. Nevertheless, when an insurer knows of the potential claim and agrees to cancel the policy in a way that defeats assertion of a claim until after the cancellation of the policy, the cancellation violates section 3625 and is therefore void. This Court believes its application of the statute is consistent with the fundamental difference in the nature of the risk insured by the claims made versus the occurrence policy. 5 In its cross motion for summary judgment, PLICO offered another justification for its assertion that it unilaterally cancelled the policy. It argued that the revocation of Valentine's medical license permitted cancellation of the policy because it constituted "[t]he occurrence of a change of risk that substantially increases any hazard insured against after insurance coverage has been issued or renewal." However, the policy excludes specifically "claims arising out of professional healthcare services rendered by any individual who was not authorized to provide such services due to the suspension; revocation; surrender; or restriction of or failure to obtain, the proper professional license in the state or locality in which the professional healthcare services were provided." Therefore, the March 10, 2005, revocation of Valentine's medical license eliminated the risk of hazzard as PLICO would not have been liable for the payment of any claim for any healthcare he provided after that date.

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Roca v. Roca

oklahoma

Oklahoma Supreme Court

ROCA v. ROCA2014 OK 55Case Number: 108190Decided: 06/24/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DEBBIE ROCA, Plaintiff-Appellant, v. CARLOS ROCA, Defendant-Appellee CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA, HONORABLE DAWN MOODY ¶0 A judgment was entered against the defendant in the above-styled matter for child support arrearages. Defendant made payments on the unpaid child support until August 26, 2009, when he sought to terminate automatic payment via payroll deduction. The parties disagreed on how payments made against the child support arrearage should be credited. The trial court concluded that amounts paid against the judgment should be credited first to current child support; second to the principal arrearage; and finally to interest on past-due sums. The Court of Civil Appeals, Division IV, reversed, concluding payments should be applied in accordance with the United States Rule, offsetting interest before the principal balance. We granted certiorari to clarify the proper method of crediting payment against past due child support, and we determine that application of the United States Rule was improper. COURT OF CIVIL APPEALS OPINION IS VACATED; AND THE TRIAL COURT'S MARCH 19, 2010 ORDER AFFIRMED A. Craig Abrahamson, Tulsa, Oklahoma, for the Plaintiff/Appellant Debbie Roca William D. Lunn, Tulsa, Oklahoma, for the Defendant/Appellee Carlos Roca GURICH, J. Facts & Procedural History ¶1 Debbie Roca, now Debbie Houston, and Carlos Roca were divorced by a consent decree entered on March 12, 1990. The decree of divorce included a child support computation which obligated Roca to pay the sum of $403.70 each month. After ten years of non-payment Houston cited Roca for contempt, alleging Roca had willfully failed to comply with the decree's child support mandates. A jury found the defendant guilty of indirect civil contempt, and he was sentenced to six months incarceration. Additionally, the trial judge imposed a judgment for past due child support in the amount of $85,392.77. In its September 13, 2000 judgment, the trial court determined that the principal arrearage owed was $55,400.27. This sum was set as the purge amount. Additionally, the judgment imposed statutory interest on the principal arrearage at a rate of ten percent per year. Neither party appealed this ruling. ¶2 Following his incarceration, Roca paid $5,000 of the purge fee and was released from custody. The trial court conditioned Roca's release on his payment of $850.00 per month toward current and past due child support beginning October 1, 2000.1 ¶3 Roca made payments for approximately two years, and on April 16, 2003, the trial court entered an order establishing a reduced purge fee of $40,215.87. The parties also entered into an agreed order lowering Roca's monthly child support payment to $193.74 per month. This order became effective May 1, 2003. The trial court lowered the cumulative monthly payment for current and past due child support from $850.00 to $600.00. Additionally, the trial judge required all future payments to be posted through the Oklahoma Centralized Support Registry.2 The Oklahoma Department of Human Services began administering child support collections for the Roca case in June of 2003. Roca made monthly payments of $600.00 between June 2003 and August 2009.3 His current monthly child support obligation terminated at the end of May 2005, when the parties' child reached the age of majority. ¶4 On August 26, 2009, Roca filed a motion asking the district court to enter an order finding he had satisfied the principal child support arrearage; he further requested termination of the wage assignment. Roca later withdrew the motion and submitted a notice which asserted "all of his court-ordered child support payments" had been paid. The notice acknowledged owing some amount of accrued interest, but maintained that the remainder of his child support obligation had been paid in full. Spreadsheets included in the record reflected child support payments of $52,168.00 were made by Roca between June 2003 and August 2009.4 Houston filed an objection, claiming for the first time that all of Roca's previous payments should have been applied in the following order: (1) current child support, (2) interest on the judgment, and finally (3) the principal arrearage. According to Houston's calculations, Roca still owed $84,147.26. On September 21, 2009, a default order was entered adopting the figures presented by Houston.5 Roca sought to vacate the default order, and on November 10, 2009, the trial court sustained Roca's motion to vacate. ¶5 On March 19, 2010, the trial court entered a final order resolving the issues surrounding allocation of payments. After being presented with the respective pleadings on the issue, and arguments from both parties, the trial judge determined: (1) payments applied against the judgment rendered July 11, 2000, should be credited first to current support (including medical expenses and child care), second to unpaid child support arrearages, and third to interest; (2) Roca's current child support obligation terminated at the end of May 2005, when the parties' child reached majority; (3) Roca had paid all sums owed for current and past due child support, excluding interest on the obligation; (4) Roca's remaining obligation was $54,818.77, representing unpaid interest on the child support obligations; (5) $54,818.77 should be set as the new purge fee; and (6) the remaining unpaid liability should not accrue further amounts of interest. ¶6 Houston appealed the lower court's ruling and COCA reversed. COCA concluded that the facts of this case required application of the common law rule also known as the United States Rule. By applying the United States Rule, COCA found that Roca's payments should be credited first to current child support, second to accrued interest, and last to the principal balance of past-due child support. Roca sought review in this Court, and we granted certiorari to resolve this question of first impression. Standard of Review ¶7 Whether monthly payments covering current child support, past-due child support, and accumulated interest should be allocated by applying the United States Rule is solely a legal issue for this Court to resolve. See generally Phillips v. Hedges, 2005 OK 77, ¶ 8, 124 P.3d 227, 230-231. Questions of law mandate application of the de novo standard of review, affording this Court with plenary, independent, and non-deferential authority to examine the issues presented. Harmon v. Cradduck, 2012 OK 80, ¶ 10, 286 P.3d 643, 648. Analysis ¶8 The sole issue presented in this case is how payments should be allocated between current child support, accumulated arrearages, and interest on past due amounts. COCA concluded this question was controlled by the United States Rule, thereby requiring Roca's payments applied first to current child support; second, to interest on past due child support; and finally to the principal balance of child support arrearages. Because we find Oklahoma statutes and DHS rules provide the method of allocating and distributing payments in this case, we reverse and hold that the United States Rule does not control this proceeding. ¶9 Deriving from common law, the United States Rule requires "partial payments of a debt be applied first to unpaid interest due and thereafter to the principal debt." 28 Williston on Contracts § 72:20 (4th ed.). Its purpose is to encourage full and prompt payment of indebtedness. Id. While the policy rationale behind application of the United States Rule to consumer loans or civil money judgments is sound, we believe COCA erroneously applied it to this child support proceeding. We have previously condoned use of the United States Rule for purposes of allocating payments toward ordinary civil money judgments. Landess v. State ex rel. Comm'rs of Land Office, 1958 OK 295, ¶¶ 10-11, 335 P.2d 1077, 1079. However, we have never been called upon to decide the Rule's application to a judgment procured from unpaid child support. ¶10 There are significant differences between a child support debt and a civil money judgment which require application of distinct allocation principles for payments toward the child support obligations in this case. Oklahoma's legislature has adopted specialized enforcement mechanisms to aid in the collection of child support, as required by Title IV, Part D, of the Federal Social Security Act, as amended, 42 U.S.C., § 651 et seq.6 These tools include, but are not limited to, revocation or non-issuance of a driver's or professional license (43 O.S. 2011 § 139.1); incarceration or fine for indirect contempt of court (21 O.S. 2011 § 566); imposition of a statutory lien against real or personal property (43 O.S. 2011 § 135); interception of the obligor's tax refund (68 O.S. 2011 § 205.2); court ordered bond or other security to ensure compliance with a child support order (43 O.S. 2011 § 116); felony prosecution for nonpayment of child support (21 O.S. 2011 § 852); and statutory interest of ten percent per annum (43 O.S.Supp. 2012 § 114). Each of the aforementioned statutes are designed to facilitate payment of child support and are inapplicable to ordinary money judgments. Child support in this state is controlled by statute; therefore it is unnecessary rely on the common law to assess an obligor's liability. ¶11 The unique aspect of a child support collection case sets it apart from actions involving an ordinary civil money judgment. The Supreme Court of West Virginia explained this contrast in a similar case: [C]hild support payments are a legal duty rather than a debt. Additionally, [Bureau of Child Support Enforcement] maintains that the Legislature's recognition of the fundamental difference between support orders and money judgments in the enactment of remedies conforming with federal requirements for collection of child support . . . are significantly different from those available for collection of routine money judgments. The statutes governing interest on support also stand apart from those relating to money judgments. Hornbeck v. Caplinger, 712 S.E.2d 779, 783 (W. Va. 2011) (citation omitted). The Hornbeck Court was presented with a legal scenario comparable to the one we are asked to decide. Id. at 782. In determining how payments toward a child support judgment should be credited, the court weighed administrative rules promulgated by the state's child support enforcement agency. Id. at 785-786. Those regulations required payment of sums in excess of current child support obligations to be applied to principal rather than interest. Id. Affirming application of these rules, the West Virginia Supreme Court noted the policy rationale behind this method of allocating payments on child support judgments: BCSE maintains that this procedure is in keeping with the legislative intent that parents have a most serious obligation to provide for the support of the needs of their children. Applying excess payments to child support principal in arrears merely carries out this priority by providing that any available assets go toward tending to the needs of a child over and above payment of interest which would benefit someone other than the child. Id. at 785. ¶12 Like West Virginia, Oklahoma has enacted specific statutes which deal with child support obligations. Furthermore, our Legislature has expressly vested DHS, as the state's child support enforcement agency, with the authority to promulgate rules necessary to carry out the requirements imposed by federal law. See 56 O.S. 2011 § 237(B)(2). In 2000, the Oklahoma Legislature amended 43 O.S. Supp. 2000 § 413 (eff. Nov. 1, 2000), adding subsection (F), which read: "[a]ll payments made through the [Centralized Support] Registry shall be allocated and distributed in accordance with Department of Human Services policy and federal regulations."7 (emphasis added). Utilizing its statutory authority, DHS implemented rules which govern the allocation and distribution of child support payments. Because the record indicates Roca began making his payments through the Centralized Support Registry in June of 2003, § 413 required those payments to be accounted for in conformity with DHS policy and federal rules.8 ¶13 At the time Roca began paying child support through the Registry, DHS regulations contained several sections which addressed allocation and distribution of payments received. First, OAC 340:25-5-351 (2003 Supp.) provided that DHS administered support payments "received by the Centralized Support Registry for IV-D and non-IV-D cases." According to definitions set forth in the rules, a non-IV-D case was defined as a private child support case not receiving IV-D services. See OAC 340:25-1-1.1 (2003 Supp.) On the other hand, a IV-D case was one involving benefits paid under Title IV, Part D, of the Social Security Act9. Id. ¶14 After all current child support was paid, the 2003 version of agency rules required DHS to apply "collections under payment plans to fixed monthly past-due support obligations." OAC 340:25-5-351(d).10 Additionally, payments to interest were controlled by OAC 340:25-5-140.1, which read in part: "(h) CSED applies payments to interest after current support and all arrears have been paid in full."11 (emphasis added). OAC 340:25-5-140.1 contained no limitation on its application, and appears equally relevant to both IV-D and non-IV-D cases. On the other hand, the rules also contain conflicting language, suggesting that in non-IV-D cases with only one family support obligation, "OKDHS pays collections directly to the family without allocating collections to the various types of support obligations."12 OAC 340:25-5-351(b)(2). To compound the apparent discord, DHS amended their allocation and distribution rules multiple times between 2003 and 2009. These inconsistencies require us to employ rules of construction to determine the objectives of DHS' administrative rules. Charlson v. State ex rel. Dept. of Public Safety, 2005 OK 83, ¶ 10, 125 P.3d 672, 675. Amendments to statutes or administrative rules may be used by this Court for the purposes of discerning ambiguities in the original enactment. See Polymer Fabricating, Inc. v. Emp'rs Workers' Comp. Ass'n, 1998 OK 113, ¶ 15, 980 P.2d 109, 114 (giving retrospective effect to legislative amendments intended to clarify uncertainties in prior version of statute). ¶15 In 2013, DHS amended its rules to clarify agency protocol for allocation and distribution in IV-D and non-IV-D cases. The current version of OAC 340:25-5-351 (eff. July 1, 2013), now provides in part: Allocation and distribution of collections .. (c) Allocation. (1) In general. Allocation refers to how a payment will be divided among obligations. Some obligors have more than one child support case and the rules of allocation determine which case receives all or a portion of the collection received. A collection is allocated based on the source of the collection and the type of legal action resulting in a collection. (2) Allocation models. OCSS divides collections among the obligor's eligible obligations based on the following models: (A) Standard Model. All payments not made by income withholding order or federal income tax refund offset are allocated to eligible obligations in the following sequence: (i) prorated to the current child support, cash medical support, and spousal support; (ii) prorated to the monthly payment plan on past support; and (iii) amounts remaining from the initial collection or additional collections received during the same month will allocate based on a prorated share of total arrears owed on all eligible obligations. The allocated amounts cannot exceed the total arrears due on the cases. (B) Income Withholding (IWO) Model. Periodic payments from an income withholding order are allocated to eligible obligations in the following sequence: (i) prorated to the current child support, cash medical support, and spousal support; (ii) prorated to the monthly payment plan on past support and other judgment(s), such as judgments for attorney fees or genetic testing costs; and (iii) the steps in (1) and (2) of this subsection are repeated for amounts remaining from the initial collection or additional collections received during the same month, until the entire collection is allocated. .. (4) Non-Title IV-D cases. In non-Title IV-D cases, OCSS allocates payments as follows: (A) payments received from an income withholding order are allocated using the IWO Model above. Collections are allocated to non-Title IV-D cases based on the amounts listed in the non-Title IV-D IWO; (B) all other payments are allocated using the Standard Model above. When OCSS receives information on processing a specific payment, OCSS may allocate the payment based on that information. d) Distribution. .. (5) OCSS distributes payments to interest owed after the current child support and principal arrears balances are paid in full to each obligation. (emphasis added).13 ¶16 The amended version of OAC 340:25-5-351 leaves no doubt that DHS allocates payments uniformly, regardless of a case's status as IV-D or non-IV-D. It also firmly establishes that in both types of cases, the principal portion of past due child support is reduced before accrued interest. Because Roca paid his child support through the Centralized Support Registry, DHS rules controlled the method of allocation. Thus, it was error to utilize the United States Rule for allocating Roca's monthly payments. Conclusion ¶17 Title 43 O.S. Supp. 2002 § 413 and DHS rules require payments made through the Centralized Support Registry in this case to be allocated first to current obligations, second to past due amounts, and finally to interest on the principle balance.14 Accordingly, we vacate the COCA opinion and affirm the trial court's order of March 10, 2010. ¶18 Reif, V.C.J., Kauger, Watt, Winchester, Edmondson, Taylor, Combs and Gurich, JJ., concur. ¶19 Colbert, C.J., not participating. FOOTNOTES 1 Although there is no order in the record which delineates how payments were to be allocated under this order, pleadings filed by Houston acknowledge the $850.00 sum was payable as the "purge fee." Motion to Accelerate Sentence, O.R. at 5. 2 See 43 O.S. 2011 § 413. 3 The record reflects that Roca also made two lump sum payments of $2,600.00 and $5,600.00 in June and July of 2003. 4 Attached to Roca's Motion to Terminate Garnishment was a DHS spreadsheet reflecting the total payments received through the Oklahoma Centralized Support Registry between June 2003 and August 2009. 5 Therein, the trial judge concluded the principal balance owed was still $59,300.45, with accumulated interest of $24,846.81 through September 1, 2009, creating a total judgment of $84,147.26. Roca alleged that the default order was entered following confusion over whether the hearing on his motion to terminate the wage assignment had been cancelled. As noted, Roca filed a pleading subsequent to his motion, styled "Defendant's Notice of Payment of Purge Fee and Withdrawal of Motion to Terminate Garnishment." In spite of Roca's withdrawal of the pending motion, Houston's attorney appeared at the scheduled hearing and secured judgment by default. Houston denied that the hearing was stricken or rendered moot by the filing of the purported notice and withdrawal. 6 In an effort to address increasing dependence on federal social services created by unpaid child support obligations, Congress passed legislation in the mid-1970s requiring each state to develop their own child support enforcement program. Laura W. Morgan, The Federalization Of Child Support A Shift In The Ruling Paradigm: Child Support As Outside The Contours Of "Family Law," 16 J. Am. Acad. Matrim. Law. 195, 203; Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 Fam., L.Q. 519, 521 (1996). Commonly referred to as a "IV-D" program, these state organizations consisted of a joint state and federal enforcement system. Numerous amendments were made to the original enactment, perhaps none more significant than the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The PRWORA ended the federal government's direct involvement with welfare administration and replaced it with a system of block grants to states complying with IV-D program requirements. Id. In the area of child support enforcement, the PRWORA compelled changes in state laws and procedures to enhance collections of support. Id. One such requirement was the creation of a central support registry. Id. 7 This section remains identical; however, it is now codified at 43 O.S. 2011 § 413(G). 8 Federal regulations only address allocation of payments in IV-D cases. 45 C.F.R. § 302.51, reads in relevant part: (a)(1) For purposes of distribution in a IV-D case, amounts collected, except as provided under paragraphs (a)(3) and (5) of this section, shall be treated first as payment on the required support obligation for the month in which the support was collected and if any amounts are collected which are in excess of such amount, these excess amounts shall be treated as amounts which represent payment on the required support obligation for previous months. (emphasis added). 9 There is nothing in the record to suggest IV-D services were being received by Houston on behalf of the minor child. 10 According to 56 O.S. 2001 § 237.7(20) "'Payment plan' includes, but is not limited to, a plan approved by the support enforcement entity that provides sufficient security to ensure compliance with a support order or that incorporates voluntary or involuntary income assignment or a similar plan for periodic payment of past-due support and, if applicable, current and future support. . ." Roca was undoubtedly paying the 2000 child support judgment via a payment plan as defined by statute. 11 See OAC 340:25-5-351 (b)(5). 12 DHS regulations defined support as "all payments or other obligations due and owing to the obligee or person entitled by the obligor under a support order, and may include, but is not limited to, child support, medical insurance or other health benefit plan premiums or payments, child care obligations, support alimony payments, and other obligations as specified in Section 118 of Title 43 of the Oklahoma Statutes." See OAC 340:25-1-1.1. It is unclear from the record in this case, whether DHS merely provided a conduit for transferring payments to Houston or whether the agency employed consistent allocation policies for both IV-D and non-IV-D cases. 13 DHS' policy on allocating interest payments remained unchanged with the 2013 amendments. See OAC 340:25-5-140.1(l) (eff. July 1, 2013) ("(l) Application of payments to interest. OCSS applies payments to interest per OAC 340:25-5-351"). 14 Because we find Oklahoma statutes and DHS regulations dictate the outcome of this case, we need not address Roca's argument that applying different allocation rules to IV-D and non-IV-D cases would violate the Equal Protection Clause of the United States and Oklahoma Constitutions.

d20d6f6d-166c-48bd-a4ae-e2f26e00758a

Oklahoma v. Native Wholesale Supply

oklahoma

Oklahoma Supreme Court

STATE ex rel. PRUITT v. NATIVE WHOLESALE SUPPLY2014 OK 49Case Number: 111985Decided: 06/10/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STATE OF OKLAHOMA, ex rel. E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, Plaintiff/Appellee,v.NATIVE WHOLESALE SUPPLY, a Corporation chartered by the Sac and Fox Tribe of Oklahoma, Defendant/Appellant. ON APPEAL FROM THE DISTRICT COURTIN OKLAHOMA COUNTY ¶0 The Attorney General initiated this proceeding against Native Wholesale Supply alleging violations of the Oklahoma Master Settlement Agreement Complementary Act. The district court denied defendant's motion to dismiss for lack of personal jurisdiction and granted defendant's motion to dismiss for lack of subject matter jurisdiction. Both parties appealed, and in that prior appeal, this Court held the State has personal jurisdiction over the defendant based on NWS' purposeful availment of the Oklahoma cigarette marketplace and has jurisdiction over the subject matter of this suit, the Native-American identity of the participants in the distribution channel notwithstanding. State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, 237 P.3d 199. On remand to the district court for further proceedings, the Honorable Bryan Dixon, presiding, entered summary judgment in favor of the Attorney General. Native Wholesale Supply appealed. This Court retained the appeal. DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED. E. Clyde Kirk and Ryan R. Chaffin, Assistant Attorneys General, Oklahoma City, OK, for appellee, State of Oklahoma ex rel. E. Scott Pruitt, Oklahoma Attorney General.David L. Kearney, Gregory T. Metcalfe, and Paula M. Williams, Oklahoma City, OK, for appellant, Native Wholesale Supply. TAYLOR, J. ¶1 The dispositive issue in this appeal is whether the appellee, the State of Oklahoma represented by the Attorney General of Oklahoma (AG), was entitled to summary judgment in the amount of $47,767,795.20, as a matter of law. In deciding the propriety of summary judgment, we must address two underlying questions: 1) whether the district court, on remand, was bound by the facts supporting our holdings in the earlier appeal, State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, 237 P.3d 199 (cert. denied, Native Wholesale Supply v. State of Okla., 131 S. Ct. 2150, 179 L. Ed. 2d 935 (2011))(Native Wholesale Supply I); and 2) whether the district court should have proceeded to a jury trial requested by the appellant, Native Wholesale Supply (NWS). We answer the first underlying question in the affirmative and the second in the negative. We conclude and hold that the AG was entitled to summary judgment in the amount of $47,767,795.20, as a matter of law. I. The Tobacco Settlement and Related Legislation ¶2 In 1998, four of the largest tobacco product manufacturers and forty-six states entered into a Master Settlement Agreement (MSA) to settle litigation brought by the states to recoup health care expenses resulting from cigarette smoking.1 In 1999, the Legislature required tobacco product manufacturers who do not join the MSA and whose cigarettes are sold in Oklahoma to make annual payments into escrow accounts to cover health care expenses resulting from cigarette smoking.2 1999 Okla. Sess. Laws, ch. 357(codified at 37 O.S.Supp.1999, §§ 600.21 - 600.23)(Escrow Statute). In 2004, the Legislature enacted the Master Settlement Agreement Complementary Act (Complementary Act) to maintain the integrity of the Master Settlement Agreement.3 2004 Okla. Sess. Laws, ch. 266 (codified at 68 O.S.Supp.2004, §§ 360.1, et seq.). ¶3 The Complementary Act requires all tobacco product manufacturers whose cigarettes are sold in Oklahoma to list the cigarette brand names with the AG and to certify that the required annual payment into an escrow account has been made. 68 O.S.Supp.2004, § 360.4(A). Each year the AG must publish on its website the list of cigarette brand names that may be sold in Oklahoma and the list of tobacco product manufacturers who have complied with the Escrow Statute. Id. at § 360.4(B). The AG's website directory, the Directory of Certified Tobacco Manufacturers/Brands Approved for Sale, is accessible to the public. Id. The Complementary Act declares that cigarettes not listed on the AG's directory are contraband and that it is unlawful for a person to sell or possess for sale cigarettes that are not listed on the AG's directory or where the AG's directory does not show the cigarette manufacturer has complied with the Escrow Statute. Id. at § 360.7. The MSA, Escrow Statute, and Complementary Act guarantee a source of compensation for the costs of health conditions associated with cigarette smoking and place the financial burden for the medical assistance on the tobacco product manufacturers based on the manufacturer's relative market share rather than on the State. II. The Proceedings ¶4 In August of 2006, the AG removed both Seneca brand cigarettes and their manufacturer, Grand River Enterprises Six Nations, Ltd., from the AG's directory. In 2007 and 2008, NWS caused Seneca cigarettes to be brought into Oklahoma knowing that the tobacco product manufacturer did not comply with the Escrow Statute or the Complementary Act and that the Seneca cigarette manufacturer and Seneca cigarettes were not on the AG's directory. ¶5 In May of 2008, Drew Edmondson, Oklahoma Attorney General, initiated this proceeding in Oklahoma County District Court seeking disgorgement and payment to the State of all gross proceeds realized by NWS from the sale of contraband Seneca cigarettes in violation of the Complementary Act. The petition set forth the following allegations. 1) NWS "knowingly sold, transported or caused to be transported, or imported or caused to be imported, Seneca cigarettes for sale in Oklahoma, thereby transacting business within this state and availing itself of the privilege of conducting activities within this state." 2) The Complementary Act "requires that a tobacco product manufacturer and its brand families must be listed on the Directory of Compliant Tobacco Manufacturers maintained by the Oklahoma Attorney General before the cigarettes can be lawfully sold in the state." 3) The Complementary Act makes it unlawful for a person to sell, distribute, acquire, possess, hold, own, transport, import or cause to be imported, cigarettes that the person knows or should know are intended for distribution or sale in this state in violation of the Complementary Act. 4) "'Seneca' cigarettes are a brand of cigarettes manufactured by Grand River Enterprises Six Nations, Ltd." and neither Grand River Enterprises nor Seneca cigarettes have been listed on the AG's directory since 2006. 5) Beginning in 2007, NWS has knowingly and unlawfully sold, distributed, acquired, held, owned, possessed, transported, imported or caused to be imported Seneca brand cigarettes in this state when it knew or should have known those cigarettes were intended for distribution in violation of the Complementary Act. ¶6 In August of 2008, NWS removed the case to federal court asserting complete federal preemption of this state-law suit because NWS "is chartered by the Sac and Fox Nation, is wholly owned by a member of the Seneca Nation, and conducts business on Indian land with Native Americans." The federal court concluded the case was improperly removed and remanded it to the state court. ¶7 In June of 2009, the state district court granted NWS' motion to dismiss for lack of subject matter jurisdiction and denied NWS' motion to dismiss for lack of personal jurisdiction. The AG appealed the subject matter jurisdiction dismissal and NWS counter-appealed the personal jurisdiction ruling. This Court held "that the State has personal jurisdiction over defendant based on the Company's purposeful availment of the Oklahoma cigarette marketplace and has jurisdiction over the subject matter of this suit, the Native-American identity of the participants in the distribution channel notwithstanding." Native Wholesale Supply I, 2010 OK 58 at ¶49, 237 P.3d at 217. Native Wholesale Supply I remanded this case to the district court after mandate issued in August of 2010. ¶8 On NWS' motion filed October 25, 2010, this Court suspended the effectiveness of the mandate to allow NWS to petition for certiorari review in the United States Supreme Court. On April 25, 2011, the United States Supreme Court denied NWS' petition for a writ of certiorari to review our opinion in Native Wholesale Supply I. Native Wholesale Supply v. State of Oklahoma, 131 S. Ct. 2150 (2011). Thereafter, NWS answered the AG's amended petition but did not respond to the AG's pending discovery requests and motions. In November of 2011, the trial court granted the AG's motion to compel, NWS filed for Chapter 11 bankruptcy in the Western District of New York, and the state court proceeding was stayed by operation of 11 U.S.C. § 362(a)(1). ¶9 NWS listed three states in the bankruptcy proceeding - California, New Mexico, and Oklahoma. The three states, each with a pending suit against NWS for violations of their respective complementary legislation, jointly moved to lift the automatic stay. On April 26, 2012, the bankruptcy court lifted the stay and directed that "information produced by [NWS] during discovery in the bankruptcy case shall be treated by the States as satisfying any request for such information in the State Litigation." The information NWS turned over to Oklahoma included documents showing the cigarette sales and shipping transactions between NWS and Muscogee Creek Nation Tobacco Wholesale and Bowen Wholesale from 2006 to 2010. ¶10 The state district court case proceeded; and, on August 17, 2012, the AG moved for summary judgment. By order dated May 9, 2013, the district court sustained the AG's motion for summary judgment, denied NWS' cross-motion for summary judgment, and entered judgment "in favor of the plaintiff, State of Oklahoma ex rel. E. Scott Pruitt, Attorney General of Oklahoma, in the amount of Forty-Seven Million Seven Hundred Sixty-Seven Thousand Seven Hundred Ninety-Five Dollars and 20/100 ($47,767,795.20) against the Defendant Native Wholesale Supply." By order dated June 17, 2013, the district court denied NWS' motion for new trial. NWS appealed the summary judgment and denial of a new trial. We retained this second appeal in this protracted litigation.4 III. Standard of Review ¶11 Summary judgment is a pretrial procedure available where there is no dispute as to the material facts and the inferences that may be drawn from the undisputed material facts and where the evidentiary materials establish each and every material fact necessary to support the judgment as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. We review a summary judgment de novo, without deference to the lower court. Id. We review the denial of a new trial for abuse of discretion. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶6, 77 P.3d 581, 584. It is an abuse of discretion to deny a new trial where the summary judgment was incorrect. Id. IV. In the post-remand summary proceeding,the district court was bound by the factual conclusions inNative Wholesale Supply I, under the circumstances in this case. ¶12 In resolving the personal jurisdiction issue, Native Wholesale Supply I had to determine whether NWS' contacts with this State were sufficient to satisfy the Fourteenth Amendment Due Process Clause. Native Wholesale Supply I examined NWS' conduct under a "stream-of-commerce theory" pronounced in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293, 100 S. Ct. 559,565, 62 L. Ed. 2d 490 (1980), and tested that conduct by a more stringent "stream-of-commerce theory plus" in Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987). Quoting from the opinion adopted by four of the Justices in Asahi Metal, Native Wholesale Supply I explained the "stream-of-commerce theory plus" as follows: "[A] defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State." A plaintiff must show additional conduct by the defendant directed toward the forum to support the exercise of jurisdiction consistent with the Due Process Clause. 2010 OK 58 at ¶14, 237 P.3d at 206 (footnotes omitted) . ¶13 Native Wholesale Supply I reviewed NWS' contacts with Oklahoma in accordance with the suggestion in Asahi Metal that there might be sufficient contacts with the forum state where the defendant "employed the distribution system that brought the product into the forum state." Id. at ¶18, 237 P.3d at 207. Native Wholesale Supply I relied upon the undisputed testimony of NWS' president for the facts that NWS imported Seneca cigarettes from the manufacturer in Canada and sold the imported cigarettes to tribal entities in the United States, that sales transactions that would ultimately bring cigarettes into Oklahoma began when Muscogee Creek Nation Wholesale placed orders with NWS, and that Muscogee Creek Nation Wholesale resold the cigarettes to tribal retailers in Oklahoma. It also relied upon the undisputed fact that Seneca cigarettes are sold by retailers located on and off tribal land in Oklahoma, the undisputed fact that NWS sells a high volume of cigarettes to Muscogee Creek Nation Wholesale as part of an ongoing business relationship, and the undisputed statistic that the demand for cigarettes by members of the Muscogee Creek Nation is a small fraction of the Seneca cigarettes NWS sells to Muscogee Creek Nation Wholesale. Based upon these facts, Native Wholesale Supply I concluded: [W]e are looking here at a distributor of a finished product - cigarettes - who causes the product to be delivered to an entity in this state in such quantities that its ultimate destination can only be the general public in this state. While the entity with which Native Wholesale Supply directly deals may operate on tribal land, that tribal land is not located in some parallel universe. It is geographically within the State of Oklahoma. Both entities are engaged in an enterprise whose purpose is to serve the Oklahoma market for cigarettes. This is not a case where the defendant is merely aware that its product might be swept into this State and sold to Oklahoma consumers. The sheer volume of cigarettes sold by Native Wholesale Supply to wholesalers in this State shows the Company to be part of a distribution channel for Seneca cigarettes that intentionally brings that product into the Oklahoma marketplace. Native Wholesale Supply is not a passive bystander in this process. It reaps a hefty financial reward for delivering its products into the stream of commerce that brings it into Oklahoma. To claim, as Native Wholesale Supply does, that it does not know, expect, or intend that the cigarettes it sells to Muscogee Creek Nation Wholesale are intended for distribution and resale in Oklahoma is simply disingenuous. In short, Native Wholesale Supply does not "merely set its products adrift on a stormy sea of commerce which randomly [sweeps] the products into" Oklahoma. They arrive here by the purposeful collective acts of the Company and the tribal wholesalers with whom it does business. We hence hold that the minimum contacts segment of due process analysis is satisfied. Id. at ¶¶23-25, 237 P.3d at 208-209 (footnote omitted). ¶14 In resolving the subject matter jurisdiction issue, Native Wholesale Supply I reviewed tribal immunity and Indian Commerce Clause jurisprudence and examined the pertinent facts accordingly. In deciding Oklahoma courts have subject matter jurisdiction in this case, Native Wholesale Supply I observed and concluded that: The transactions at issue in this case are between a Sac and Fox chartered corporation operating on the tribal land of another tribe with a third tribe, the Muscogee Creek Nation. Such transactions are not beyond the reach of state authority. In reality, Native Wholesale Supply's transactions with Muscogee Creek Nation Wholesale extend beyond the boundaries of any single "reservation." The cigarettes at issue are manufactured in Canada, shipped into the United States, and stored in a Free Trade Zone in Nevada. Muscogee Creek Nation Wholesale places orders for cigarettes from its "reservation" located within the territorial boundaries of this State to Native Wholesale Supply at the latter's principal place of business on another "reservation" in another State. Delivery of the cigarettes to Muscogee Creek Nation Wholesale requires shipment of the cigarettes from Nevada to the purchaser's tribal land in Oklahoma. The entire process comprising these sales thus takes place in multiple locations both on and off different tribal lands. This is not on-reservation conduct for purposes of Indian Commerce Clause jurisprudence, but rather off-reservation conduct by members of different tribes. . . . Id. at ¶¶44-45, 237 P.3d at 216 (footnote omitted). ¶15 The above conclusions based upon the undisputed materials in the record on appeal were necessary to the resolution of the jurisdictional issues presented in Native Wholesale Supply I. In its motion for summary judgment post-remand, the AG took the position that the factual conclusions in Native Wholesale Supply I were the settled law of the case and binding on the district court. NWS responded that jurisdictional facts are not conclusive of factual issues on the merits which require a higher standard of proof, that it did not waive its right to a jury trial, and that it was entitled to summary judgment. ¶16 On summary judgment, NWS did not assert error in the factual conclusions in Native Wholesale Supply I nor did it present any additional probative evidence to dispute any material fact. In its appeal brief, NWS contends that the factual conclusions in Native Wholesale Supply I are obiter dicta5 and not binding on the district court because all that is required to establish jurisdictional facts is a prima facie showing of defendant's connection with the forum states. ¶17 NWS' argument for the procedural protection of a standard of proof higher than a prima facie showing is unavailing here. The evidence in the appellate record analyzed in Native Wholesale Supply I supported more than an inference or a rebuttable presumption.6 The undisputed probative evidence in Native Wholesale Supply I clearly showed the Seneca cigarette brand was not listed on the AG's directory after August of 2006 (Thus, Seneca cigarettes were contraband in Oklahoma by operation of law.); Seneca cigarettes were brought into Oklahoma by the purposeful collective acts of NWS and the wholesalers with whom it did business (based upon the NWS' president's undisputed affidavit detailing the distribution process); the undisputed distribution process that brought Seneca cigarettes to the general public in Oklahoma was not on-reservation conduct beyond the reach of this State's authority, even though it involved members of several Native American tribes located on tribal land; and NWS intentionally distributed Seneca cigarettes to be sold in the Oklahoma cigarette market (based upon the sheer volume of Seneca cigarettes sold by NWS to wholesalers in this State). ¶18 The settled-law-of-the-case doctrine7 "operates to bar relitigation of (a) issues in a case which are finally settled by an appellate opinion or of (b) those the aggrieved party failed to raise on appeal." Smedsrud v. Powell, 2002 OK 87, ¶13, 61 P.3d 891, 896. Upon remand, the parties in this case were free to repress and rehash their claims and defenses except for the settled law of the case. "In postremand summary process the settled law of the case operates upon all the facts revealed by the probative materials before the court at the time the law's settling took place." Id. The factual conclusions in Native Wholesale Supply I are settled between the parties in this case and were binding on the district court on summary judgment. ¶19 There is but one exception to the settled-law-of-the-case doctrine - the doctrine does not apply where the prior decision was palpably erroneous and will result in gross injustice.8 On appeal, NWS argues that it was denied a jury trial on an undecided question of fact when the district court gave preclusive effect to this Court's statements in the prior appeal. Although NWS does not specify the undecided question of fact, apparently it was whether NWS knew it violated the Complementary Act which we address in part V of this opinion. NWS argues that the prior opinion works a manifest injustice but does not support this argument with fact or law. This shallow argument does not bring NWS within the palpably-erroneous-and-gross-injustice exception to the settled-law-of-the-case doctrine. V. NWS was not entitled to have a jury decide whether it knew the sale of Seneca cigarettes violated the Complementary Act. ¶20 On appeal, NWS contends that Native Wholesale Supply I concluded it had knowledge that the cigarettes would be sold in Oklahoma, but did not conclude that it had knowledge that the sales would be in violation of the Complementary Act. NWS also contends that it did not know the sales violated the Complementary Act9 and argues that the AG did not offer any evidence showing that the cigarette sales violated the Complementary Act. ¶21 In response, the AG asserts that the manufacturer of Seneca cigarettes, Grand River Enterprises Six Nations, Ltd., had an escrow deficiency of more than Five Million Dollars for 2005 and 2006, and because of its escrow deficiency, Grand River Enterprises and Seneca brand cigarettes were removed from the AG's directory on August 1, 2006. For these facts, the AG cites to State ex rel. Edmondson v. Grand River Enterprises Six Nations, Ltd., 2013 OK CIV APP 58, 308 P.3d 1057 (cert. denied by Oklahoma Supreme Court on May 28, 2013, and cert. denied by the United States Supreme Court on December 2, 2013, Grand River Enterprises Six Nations, Ltd. v. Oklahoma ex rel. E. Scott Pruitt, Attorney General, 134 S.Ct. 683). The AG also asserts that the appellate record shows the AG's office contemporaneously advised NWS that Grand River Enterprises and Seneca brand cigarettes would be removed from the AG's directory on August 1, 2006, and that Seneca cigarettes would be contraband in Oklahoma; that from August 1, 2006 to August 16, 2010, NWS shipped or sold more than 600 million illegal contraband Seneca cigarettes into Oklahoma; and that the settled law of the case is that NWS distributed contraband cigarettes to wholesalers in Oklahoma with the knowledge, expectation, and intention that the cigarettes would be sold in the Oklahoma cigarette market. ¶22 The AG's response is supported by the appellate record. The AG submitted an affidavit swearing that prior to removing Seneca cigarettes from the AG's directory, the AG's office advised NWS' attorney that Seneca cigarettes would be removed and would be contraband in Oklahoma. NWS did not contradict the AG's evidence that NWS knew Seneca cigarettes would be removed from the AG's directory and would be contraband in Oklahoma. ¶23 NWS argues that each and every pack of the Seneca cigarettes it caused to be imported and distributed into Oklahoma was stamped "for reservation sales only," proving that it intended the cigarettes were to be sold only on Native American reservations. According to NWS, the stamp proves it did not have knowledge that the Seneca cigarettes would be sold in violation of the Complementary Act. NWS made this claim in the first appeal, and we rejected it as simply disingenuous. Native Wholesale Supply I, 2010 OK 58, ¶¶22, 24, 237 P.3d at 208. With this argument, NWS acquiesces in the fact that it intentionally imported and distributed Seneca cigarettes for sale in Oklahoma. The point is settled as a matter of law in this case: NWS intentionally and purposefully brought contraband Seneca cigarettes into the Oklahoma marketplace. Id. ¶24, 237 P.3d at 208. ¶24 Further, NWS was not entitled to a jury trial on the unsettled fact issues on remand. The Complementary Act does not provide for a jury trial, and there is no guaranteed constitutional right to a jury trial in this dispute. The United States Constitution10 and the Oklahoma Constitution11 preserve the common law right to trial by jury in civil cases: The right to trial by jury, declared inviolate by Article II, Section 19, of the Constitution of Oklahoma, except as modified by the Constitution itself, has reference to the right as it existed in the territories at the time of the adoption of the Constitution, and the right to a jury trial therein referred to was not predicated upon the statutes existing in the territories at that time, but the right as guaranteed under the United States Constitution and according to the course of the common law. A.E. v. State, 1987 OK 76, ¶11, 743 P.2d 1041, 1044; Maryland Nat. Ins. Co. v. District Court of Oklahoma County, 1969 OK 73, ¶0, 455 P.2d 690, Syllabus by the Court, No. 1; Keeler v. State ex rel. Sayer, 1921 OK 97,198 P. 866, Syllabus by the Court, No. 1. ¶25 This is not a suit recognized at common law. This is a suit authorized by statute to disgorge the gross proceeds NWS gained from the flagrant violation of Oklahoma's Complementary Act.12 This is not a civil action with a guaranteed right to trial by jury. NWS was not entitled to have a jury decide whether it knew the distribution or sale of contraband Seneca cigarettes violated the Complementary Act or to determine the amount of the gross proceeds it realized from the distribution of the contraband cigarettes in Oklahoma. VI. The AG was entitled to summary judgment anda $47,767,795.20 award, as a matter of law. ¶26 In support of its motion for summary judgment, the AG submitted twenty evidentiary exhibits. NWS offered only one exhibit, the AG's motion to dismiss the first appeal, in support of its cross-motion for summary judgment.13 NWS did not challenge or dispute any of the AG's summary judgment evidentiary material.14 ¶27 The AG requested the district court to enter summary judgment in its favor and to order NWS to disgorge the gross receipts received from the sale of Seneca cigarettes as evidenced by Exhibits 5 and 6. Exhibits 5 and 6 were sales and shipping records which NWS supplied to the AG in the bankruptcy court in New York. The district court inquired whether these two exhibits are "the gospel," and NWS' attorney replied in the affirmative. NWS made no effort in the district court to dispute the material facts that it imported and directed the distribution of Seneca cigarettes into Oklahoma as shown in the sales and shipping records included in Exhibits 5 and 6. These two exhibits, according to the AG, show NWS' gross receipts from its sales of Seneca cigarettes in violation of the Complementary Act totaled at least $47,767,795.20. The AG requested a $47,767,795.20 award against NWS to be paid into the Oklahoma Tobacco Settlement Endowment Fund. ¶28 The district court entered summary judgment in favor of the AG and ordered NWS be disgorged of $47,767,795.20 of its gross receipts. On appeal, NWS contends that disgorgement of gross receipts from all sales of cigarettes brought into Oklahoma is erroneous and that it should have had an opportunity to present evidence showing the significant portion of its gross receipts that were attributable to federal excise taxes and the costs of the cigarettes. On summary judgment, NWS did have an opportunity to present evidence to the district court. However, in responding to the AG's motion for summary judgment, NWS did not offer any evidentiary material showing the amount it paid, if any, for federal taxes on the cigarettes it imported from Canada; the amount it paid, if any, to the cigarette manufacturer; or the amount it paid, if any, for transportation and storage of the cigarettes it caused to be imported and shipped into Oklahoma during the period from August of 2006 to August of 2010. ¶29 On summary judgment, NWS had a duty to come forward with acceptable evidence to controvert the AG's material facts, to raise a substantial controversy as to the appropriate monetary award to be imposed, or to otherwise oppose the AG's request for disgorgement of gross receipts for violation of the Complementary Act.15 Rule 13, Rules for District Courts, 12 O.S. 2011, ch. 2, app. It did not do so, and we will not resurrect procedural rights that NWS did nothing to preserve on summary judgment in the district court. ¶30 The certification provisions in the Complementary Act expressly require an importer of cigarettes manufactured outside the United States to accept joint and several liability with the nonparticipating manufacturer for all escrow deposits, penalties, costs, and attorney fees assessed or imposed under the Escrow Statute.16 The parties do not question that the Canadian manufacturer of Seneca cigarettes failed to comply with the Escrow Statute and the Complementary Act and that, under the Complementary Act, Seneca cigarettes were contraband in Oklahoma after August 1, 2006.17 NWS knew it was importing and distributing cigarettes from a manufacturer that did not comply with the Escrow Statute and the Complementary Act. NWS did nothing to meet the escrow requirements of its foreign cigarette manufacturer. Rather, NWS intentionally distributed the contraband Seneca cigarettes into Oklahoma knowing the State was not financially protected, as directed in the Complementary Act, from shouldering the costs of medical conditions caused by the cigarettes. NWS' conduct was unlawful under the Complementary Act: E. 1. It shall be unlawful for a person to: a. sell or distribute cigarettes, or b. acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the state in violation of the Master Settlement Agreement Complementary Act. A violation of the act shall be a misdemeanor. 68 O.S.Supp.2004, § 360.7(E)(1). ¶31 An order disgorging gross receipts is an authorized remedy for violation of the Complementary Act: G. If a court determines that a person has violated the Master Settlement Agreement Complementary Act, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the Tobacco Settlement Endowment Trust Fund. Unless otherwise expressly provided, the remedies or penalties provided by the Master Settlement Agreement Complementary Act are cumulative to each other and to the remedies or penalties available under all other laws of this state. Id. § 360.8(G) (emphasis added). In reviewing § 360.8(G), we begin with the language, and if it is unambiguous, we assign the plain meaning to the words.18 The above highlighted statutory language is not susceptible to more than one interpretation.19 On its face, the plain meaning of the highlighted language is clear. Section 360.8(G) is a legislative mandate to the courts to order disgorgement of 1) profits, 2) gain, 3) gross receipts, OR 4) other benefit from the violation of the Complementary Act. The use of the disjunctive "or" indicates the choices are alternatives,20 and the court has discretion as to the amount it will order to be disgorged. ¶32 Section 360.8(G) further provides that the remedies and penalties in the Complementary Act are cumulative to each other and to remedies and penalties in other laws. A cumulative remedy is one created by statute in addition to another remedy that remains in force.21 A reading of the entire subsection indicates legislative intent to provide alternative and concurrent remedies and penalties that will secure enforcement of the Complementary Act and deter violations such as NWS' conduct. Here, the AG, in his discretion, sought and the district court, in its discretion, ordered that NWS disgorge its gross receipts from its four years of continuous violation of the Complementary Act. ¶33 We must now determine whether the appellate record establishes each and every material fact necessary to support the summary judgment order disgorging NWS' gross receipts from the distribution of contraband Seneca cigarettes in Oklahoma in the amount of $47,767,795.20, as a matter of law. We have carefully examined the appellate record for evidence supporting the $47,767,795.20 summary judgment award to the AG, in particular, the sales and shipping records with Bowen Wholesale (Exhibit 5) and the sales and shipping records with Muscogee Creek Nation Tobacco Wholesale (Exhibit 6). We also examined NWS' invoices to Muscogee Creek Nation Tobacco Wholesale (Exhibits 7 and 17). ¶34 Exhibit 5 is a spreadsheet documenting NWS' sales to Bowen Wholesale from February 6, 2006 through August 16, 2010, which totaled $8,721,193.80. Exhibit 6 is a spreadsheet documenting NWS' sales to Muscogee Creek Nation Wholesale from February 13, 2007 through August 16, 2010, which totaled $39,726,693.70. Exhibits 7 and 17 are the invoices for the transactions between NWS and Muscogee Creek Nation Wholesale contained in Exhibit 6. Exhibits 5 and 6 show total gross proceeds realized by NWS to be $48,447,887.00. However, excluding from Exhibit 6 the transactions that occurred prior to August 1, 2006, Exhibits 5 and 6 support the AG's claim that NWS had gross receipts which totaled at least $47,767,795.20 from the sale of contraband Seneca cigarettes for resale in Oklahoma from August of 2006 to August of 2010. The evidence is more than sufficient to support the judgment of $47,767,795.20. Under the Complementary Act, the settled law of the case, and the undisputed material facts on summary judgment, we determine and hold that, as a matter of law, the AG is entitled to summary judgment in the amount of $47, 767,795.20 for deposit in the Tobacco Settlement Endowment Trust Fund. VII. Conclusion ¶35 The Escrow Statute and the Complementary Act express Oklahoma's public policy concerning the harm caused by cigarette smoking and tobacco-related illness. Cigarette smoking is a danger not only to our public health, but also to the fiscal soundness of this state. 37 O.S.Supp.1999, § 600.23(B). Importing and distributing Six Hundred Million contraband Seneca cigarettes into Oklahoma contrary to Oklahoma's public policy, NWS has derived a large cost advantage and an enormous short-term profit before liability may arise from the use of the contraband cigarettes without ensuring that Oklahoma will have a source of recovery from NWS or before NWS becomes judgment-proof. Id. ¶36 In deciding that personal jurisdiction over NWS comported with fair play and substantial justice, Native Wholesale Supply I evaluated the burden on NWS to defend in the forum State, the interests of the forum State in obtaining relief, the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Native Wholesale Supply I, 2010 OK 58 at ¶26, 237 P.3d at 208. Native Wholesale Supply I observed: First, the interest of the State in adjudicating this matter in Oklahoma is obviously very strong. The integrity of the Master Settlement Agreement depends on the ability of the State to enforce its terms. A decision adverse to the state on this issue would permit cigarette manufacturers and wholesalers to evade the MSA by setting up distribution networks whose participants pose as fully independent entities engaging in carefully structured transactions that ostensibly take place outside of the State. In this way, tobacco manufacturers and merchants could purposefully, albeit indirectly, target cigarettes at Oklahoma, reaping the economic benefit of engaging in the tobacco industry while evading the public policy embodied in the MSA and the Complementary Act of shifting the burden of tobacco-related health care costs from the State to the entities who profit from the smoking enterprise. Second, defending this suit in Oklahoma does not present an undue burden on Native Wholesale Supply. Any burden upon Native Wholesale Supply from mounting a defense in Oklahoma is clearly minimal in light of the State's uncontroverted allegation that the Company reaps millions of dollars from the sale of Seneca cigarettes to Oklahoma consumers. Finally, the states have a collective interest in the efficient resolution of controversies and in furthering fundamental substantive social policies. The courts of this State and only the courts of this State offer the most efficient and rational forum for the resolution of a controversy over the meaning and effect of State statutes governing the allocation of the financial and health-care costs associated with smoking between the public and private sectors. Id. ¶¶26-29, 237 P.3d at 208. ¶37 Here, NWS purposefully targeted the Oklahoma cigarette market and reaped the economic benefit of selling cigarettes in Oklahoma. Defiantly, NWS continued to import and distribute contraband Seneca cigarettes into Oklahoma and reap millions of dollars from the sale of the contraband cigarettes to Oklahoma consumers for more than two years after Oklahoma's chief law enforcer filed this suit. NWS may not evade the public policy embodied in the MSA, the Escrow Statute, and the Complementary Act and thereby shift the burden of tobacco-related health care costs to the State. Disgorging gross receipts that NWS, a cigarette importer and distributor, received when it intentionally distributed contraband cigarettes into the Oklahoma market in violation of the Complementary Act is no more excessive than seizing and forfeiting contraband cigarettes from a cigarette distributer or wholesaler.22 NWS' claim to Eighth Amendment protection minimizes the egregiousness of its flagrant disrespect for Oklahoma, our laws, and our citizens. ¶38 NWS had gross receipts that totaled at least $47,767,795.20 from the sale of contraband Seneca cigarettes for resale in Oklahoma from August of 2006 to August of 2010. Based upon the Complementary Act, the settled law of the case, and the undisputed material facts on summary judgment, the summary judgment was proper, and the district court did not abuse its discretion in denying NWS a new trial. DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED. Colbert, C.J.; Reif, V.C.J; and Watt, Winchester, and Taylor, JJ., concur. Kauger, J., concurs in result. Gurich, J. (by separate writing) dissents. Edmondson and Combs, JJ., disqualified. FOOTNOTES 1 The states sued the major tobacco companies to recover their Medicaid costs due to tobacco-related disease. The MSA addressed the monetary damages, annual escrow payments, and public health issues regarding tobacco use, such as prevention of use of tobacco products by youth, advertising, smoking cessation, and education. Subsequently, some forty other tobacco product manufacturers have joined the MSA. The annual payments and a portion of the proceeds from the settlement are held in the Tobacco Settlement Endowment Trust Fund. Okla. Const., art. X, § 40. 2 In the Escrow Statute, 37 O.S.Supp.1999, § 600.21, the Legislature made the following findings: B. The Oklahoma Legislature further finds that cigarette smoking also presents serious financial concerns for the State of Oklahoma; that, under certain health care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking; that those persons may have a legal entitlement to receive such medical assistance; and that, under these programs, the State of Oklahoma pays millions of dollars each year to provide medical assistance for those persons for health conditions associated with cigarette smoking. C. The Oklahoma Legislature additionally finds that it is the policy of the State of Oklahoma that financial burdens imposed on the state by cigarette smoking should be borne by tobacco product manufacturers rather than by the State of Oklahoma to the extent that such manufacturers either determine to enter into a settlement with the state, or are found culpable by the court; and that on November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the "Master Settlement Agreement," with the state, which obligates these manufacturers, in return for a release of past, present, and certain future claims against them as described therein, to pay substantial sums to the state (tied in part to their volume of sales); to fund a national foundation devoted to the interests of public health; and to make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking. C. The Oklahoma Legislature therefore finally finds that it would be contrary to the policy of the State of Oklahoma if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably; and that it is thus in the interest of the State of Oklahoma to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise. 3 68 O.S.Supp.2004, § 360.2 provides: The Oklahoma Legislature declares that violations of Sections 600.1 through 600.23 of Title 37 of the Oklahoma Statutes threaten the integrity of the Master Settlement Agreement as defined in Section 600.22 of Title 37 of the Oklahoma Statutes, the fiscal soundness of the state, and the public health. The Legislature declares that enacting this act enhances the Prevention of Youth Access to Tobacco Act by preventing violations and aiding in the enforcement of the Master Settlement Agreement Complementary Act and thereby safeguard the Master Settlement Agreement, the fiscal soundness of the state, and the public health. 4 This Court granted NWS' motion to file additional briefs in this summary disposition appeal over the AG's objection. Rule 1.36(g), Okla. Sup. Ct. R., 12 O.S.2011, ch. 15, app. 1. NWS also filed a motion for oral argument to which the AG objected. Because oral argument is not essential to an understanding of the legal questions presented herein, NWS' motion for oral argument is denied. 5 The conclusions in Native Wholesale Supply I were necessary to decide the jurisdictional issues presented and were not obiter dicta. Burch v. Allstate Ins. Co., 1998 OK 129, ¶12, 977 P.2d 1057, 1062-1063; Huston v. Scott, 1908 OK 10, 94 P. 512, Syllabus by the Court. 6 A prima facie showing is evidence that establishes a given fact necessary to a judgment, but which may be refuted by other evidence. Slides v. John Cordes, Inc., 1999 OK 36, ¶14, 981 P.2d 301, 306. 7 The settled-law-of-the-case doctrine is firmly established. Wellsville Oil Co. v. Miller, 1915 OK 483, 150 P. 186, 48 Okla. 386 (Syllabus No. 3, "[N]o question open to dispute, either expressly or by implication, decided on appeal, will be open for review upon a second appeal between the same parties in regard to the same subject-matter."); Handy v. City of Lawton, 1992 OK 111, ¶13, 835 P.2d 870, 873 ( "When Handy I was brought, all of the facts about both the scope of the officer's employment and the requirements for carrying out his duties were known or could have been developed. The sufficiency of those same facts were determined by the Court of Appeals in Handy I and may not be questioned on subsequent appeal."); Miller Dollarhide, P.C. v. Tal, 2006 OK 27, ¶8, n. 11, 174 P.3d 559, 563 (citing In re Estate of Severns, 1982 OK 64, ¶5, 650 P.2d 854, 856, reaffirmed that issues settled, or that could have been settled, on appeal will not be subject to further litigation between the parties in that case.) 8 The palpably-erroneous exception to the settled-law-of-the-case doctrine is limited to extreme circumstances of manifest injustice. Bierman v. Aramark Refreshment Services, Inc., 2008 OK 29, ¶13, 198 P.3d 877, 881-882; Acott v. Newton & O'Conner, 2011 OK 56, ¶11, 260 P.3d 1271, 1274. 9 If, by this contention, NWS is urging ignorance of the law, we reject it. "It is axiomatic, that in most instances, ignorance of the law is no excuse, and every person is presumed to know the law." Estes v. ConocoPhillips Co., 2008 OK 21, ¶22, 184 P.3d 518, 526-527(footnote omitted). 10 Seventh Amendment, U.S. Const. 11 Art. 2, § 19, Okla. Const. 12 Throughout this litigation, the AG has sought to disgorge NWS' gross proceeds realized from the distribution of contraband Seneca cigarettes in Oklahoma pursuant to 68 O.S.Supp.2004, § 360.8(F) and (G). On remand after the first appeal, the basic dispute concerned the amount of gross proceeds NWS gained from its flagrant violations of the Complementary Act, that is, the money which shall be disgorged and deposited into the Oklahoma Tobacco Settlement Endowment Fund for the support of the health and well-being of Oklahoma citizens in accordance with § 360.8(G). 13 In its cross-motion, NWS urged that it was entitled to summary judgment as a matter of law because Native American law issues are palpably complex and no one is clear on what the law is as evidenced in this case where the trial judge ruled that the case is barred by the Indian Commerce Clause and this Court reversed the trial court; that NWS and Muscogee Creek Nation met to discuss whether "Nation to Nation sales" are subject to state taxation and escrow requirements; and that the Tenth Circuit has noted that it is not clear that the state has authority to enforce the Complementary Act, citing Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012). NWS offered the AG's motion to dismiss the first appeal to support the fact that it met with Muscogee Creek Nation to discuss "Nation to Nation sales." We recognize the complexity of Native American law, but that is simply not a valid defense to a suit in state court against a Native American. As to "Nation to Nation sales," Native Wholesale Supply I held that NWS "was not clothed with tribal immunity from suit" as it "operates solely as a private business for the personal profit of its owner who happens to be a Native American belonging to the Seneca Nation." Native Wholesale Supply I, 2010 OK 58 at ¶33, 237 P.3d at 210-211. As to federal preemption, Native Wholesale Supply I observed, "[t]here is no federal jurisprudence pronouncing Indian sovereignty in the area of cigarette distribution and sales, nor have we been directed to any congressional enactments reflecting and encouraging tribal self-sufficiency and economic development through the distribution and sale of cigarettes." Id. at ¶47, 237 P.3d at 216. Finally, Muscogee (Creek) Nation v. Pruitt is not on point here. The district court correctly denied NWS' cross-motion for summary judgment. 14 NWS' failure to present any evidence would not necessarily prevent it from showing an actual controversy as to a material fact issue. Hadnot v. Shaw, 1992 OK 21, ¶18, 826 P.2d 978, 984. NWS could show the existence of a substantial dispute of a material fact through the AG's evidentiary materials. Id. But here, NWS did not challenge the AG's evidentiary material or offer any evidence to rebut the AG's evidence. 15 A party responding to summary judgment has an obligation to present some material that shows a trial is necessary. Davis v. Leitner, 1989 OK 146, ¶12, 782 P.2d 924, 926. 16 68 O.S.Supp.2004, § 360.4(A)(6) provides: In the case of a nonparticipating manufacturer located outside of the United States, the certification shall further certify that the nonparticipating manufacturer has provided a declaration from each of its importers into the United States of any of its brand families to be sold in Oklahoma. The declaration shall be on a form prescribed by the Attorney General and shall state that such importer accepts joint and several liability with the nonparticipating manufacturer for all escrow deposits due, for all penalties assessed and for payment of all costs and attorney fees imposed in accordance with Sections 600.21 through 600.23 of Title 37 of the Oklahoma Statutes. Such declaration shall appoint for the declaration a resident agent for service of process in Oklahoma in accordance with Section 360.5 of this title. Enacted after the time period involved in this case, 68 O.S.Supp.2009, § 360.5-1 imposes joint and several liability upon the importer for "deposit of all escrow due, payment of all penalties imposed and payment of all costs and attorney fees." 17 68 O.S.Supp.2004, § 360.7(B) provides B. Any cigarettes that have been sold, offered for sale, or possessed for sale in this state or imported for personal consumption in this state, in violation of the Master Settlement Agreement Complementary Act, shall be deemed contraband pursuant to the Master Settlement Agreement Complementary Act. Those cigarettes shall be subject to seizure and forfeiture as provided by this section and all cigarettes so seized and forfeited shall be destroyed as provided by this section and not resold. 18 W.R. Allison Enterprises, Inc. v. CompSource Okla., 2013 OK 24, ¶14, 301 P.3d 407, ; Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶9, 130 P.3d 213. 19 "The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation." In the Matter of J.L.M., 2005 OK 15, ¶5, 109 P.3d 336, 338. 20 Id. 2005 OK 15 at ¶7, 109 P.3d at 338-339. 21 Goss v. Trinity Sav. & Loan Ass'n, 1991 OK 19, § 14, 813 P.2d 492, 495. 22 Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 161-162, 100 S. Ct. 2069, 2085 (1980), found that Washington's interest in enforcing its taxes on cigarettes justified seizure of the cigarettes in transit when the Tribes refused to fulfill collection and remittance obligations under state law; and that the off-reservation, en route seizures allow the State to police against wholesale evasion of its taxes. Oklahoma Tax Com'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 55, 514, 111 S. Ct. 905, 912 (1991)(States may enforce taxes on cigarettes from wholesalers by seizing unstamped cigarettes off the reservation.). GURICH, J., dissenting: ¶1 In the first appeal in this case, State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, 237 P.3d 199 (Native Wholesale Supply I), this Court decided two issues: 1) "Is an Oklahoma court a constitutionally sanctioned forum for the exercise of personal jurisdiction to adjudicate an alleged violation of a state statute by Native Wholesale Supply, a nonresident corporation that claims to have no minimum contacts with Oklahoma?" and 2) "Does federal law bar Oklahoma from enforcing the Complementary Act against Native Wholesale Supply, a tribally-chartered corporation wholly owned by an individual of Native-American ancestry?" Native Wholesale Supply I, 2010 OK 58, ¶ 1, 237 P.3d at 203. ¶2 As to the first question, this Court relied on the stream-of-commerce theory of personal jurisdiction and found that "Native Wholesale Supply does not 'merely set its products adrift on a stormy sea of commerce which randomly [sweeps] the products into' Oklahoma. They arrive here by the purposeful collective acts of the Company and the tribal wholesalers with whom it does business. We hence hold that the minimum contacts segment of due process analysis is satisfied." Id. ¶ 25, 237 P.3d at 209. As to the second question, this Court held the Master Settlement Agreement Complementary Act (MSACA) applied to Native Wholesale Supply and that the Indian Commerce Clause did not bar enforcement of the Act against Native Wholesale Supply. Id. ¶¶ 43-45, 237 P.3d at 215-16. This Court did not address the merits of the case, i.e., whether Native Wholesale Supply actually violated the MSACA. ¶3 On remand, however, the Attorney General relied on the settled-law-of-the-case doctrine and on several statements from this Court in Native Wholesale Supply I to convince the trial court that no questions of fact were in dispute as to whether Native Wholesale Supply violated the MSACA. At issue now in this second appeal is whether the facts relied on by this Court in Native Wholesale Supply I in deciding the jurisdictional issues were binding on the trial court on remand in determining the merits of the case. The Trial Court Was Not Constrained Under the Settled-Law-of-the-CaseDoctrine by Any Factual Findings Made by This Court in Native Wholesale Supply I ¶4 The settled-law-of-the-case doctrine bars relitigation of only those issues that have been settled by an appellate opinion. Robert Wheeler Inc. v. Scott, 1991 OK 95, ¶ 10, 818 P.2d 475, 479.1 Native Wholesale Supply I only settled that the courts of this state may exercise jurisdiction over the non-resident defendant Native Wholesale Supply; Native Wholesale Supply is not immune from suit in state court based on tribal immunity; and the Indian Commerce Clause does not bar enforcement of the MSACA against Native Wholesale Supply. The trial court might have been bound by the factual findings made by this Court in Native Wholesale Supply I had the jurisdictional issues been intertwined with the merits of the case.2 However, neither party argued in Native Wholesale Supply I that the jurisdictional issues were intertwined with the merits of the MSACA claim, and this Court made no such finding. "[A] claim based upon a lack of jurisdiction is usually considered to be a claim not affecting the merits of the controversy."3 ¶5 Even so, a jurisdictional issue is only intertwined with the merits when jurisdiction is "dependent upon an issue that is also an element to the merits of the cause of action, and the adjudication of the jurisdictional issue necessarily adjudicates a cause of action or defense thereto." Lucas, 2013 OK 14, ¶ 8, 297 P.3d at 383. In this case, the adjudication of the jurisdictional issues in Native Wholesale Supply I did not adjudicate any elements of the MSACA claim, contrary to the Attorney General's assertion.4 The MSACA provides: It shall be unlawful for a person to: a. sell or distribute cigarettes, or b. acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the state in violation of the Master Settlement Agreement Complementary Act. . . . 68 O.S. Supp. 2004 § 360.7(E). In other words, the State must prove in this case that Native Wholesale Supply, at the time it sold the cigarettes to the respective wholesalers, knew or should have known that the wholesalers intended for the cigarettes to be distributed or sold in violation of the MSACA. While some of the facts discussed in Native Wholesale Supply I might be relevant in proving Native Wholesale Supply's knowledge at the time it sold the cigarettes to the wholesalers, intentionally bringing cigarettes into the Oklahoma marketplace for purposes of stream-of-commerce theory of personal jurisdiction does not equate to knowledge of the wholesalers' intent to sell or distribute the cigarettes in violation of the MSACA.5 Even If the Trial Court Was Bound by Factual Findings in Native Wholesale Supply I, Disputed Questions of Fact Remain as to Whether Native Wholesale SupplyViolated the MSACA, Making Summary Judgment Improper ¶6 The Attorney General's argument on remand that this Court "affirmatively settled that NWS intentionally sold, shipped, and/or caused Seneca cigarettes to be shipped into and within Oklahoma" in violation of the MSACA disregards a critical element of the MSACA claim.6 Although Native Wholesale Supply does not dispute that cigarette sales took place,7 the fact that cigarette sales were made does not prove Native Wholesale Supply knew or should have known at the time it sold the cigarettes to the wholesalers that the wholesalers intended for the cigarettes to be distributed or sold in violation of the MSACA.8 The statute requires proof of such knowledge on the part of Native Wholesale Supply, and disputed questions of fact remain with regard to this issue. ¶7 The Attorney General argues it is affirmatively settled that the transactions between Native Wholesale Supply and Muscogee Creek Nation Wholesale are subject to the MSACA. But as Native Wholesale Supply points out, at the time of the transactions between 2006 and 2010, it was not settled that the transactions were subject to the MSACA. Native Wholesale Supply argued in Native Wholesale Supply I that tribal to tribal transactions were beyond the reach of state regulatory power, and as such, the transactions with Muscogee Creek Nation Wholesale were not subject to the MSACA. Native Wholesale Supply I, 2010 OK 58, ¶ 43, 237 P.3d at 215. The trial court in Native Wholesale Supply I agreed with this interpretation of the law and initially dismissed the suit finding it was barred by the Indian Commerce Clause. Not until the appeal in Native Wholesale Supply I in 20109 did this Court conclusively decide that the MSACA applied to Native Wholesale Supply and that neither tribal immunity nor the Indian Commerce Clause barred enforcement of the MSACA against Native Wholesale Supply. So then, how could Native Wholesale Supply have known at the time of the transactions that Muscogee Creek Nation Wholesale intended for the cigarettes to be distributed or sold in violation of the MSACA when it was not clear whether the MSACA even applied to the transactions? ¶8 The Attorney General argues Native Wholesale Supply had knowledge as early as 2003 that the transactions with Muscogee Creek Nation Wholesale were problematic under the MSACA.10 But whether or not the State's evidentiary materials prove Native Wholesale Supply knew, or should have known, at the time it sold the cigarettes to the wholesalers that such entities intended for the cigarettes to be distributed or sold in violation of the MSACA is for the trier of fact to decide. Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary material establish that there is no genuine issue as to any material fact. Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, ¶ 36, 119 P.3d 192, 203. I respectfully dissent.11 FOOTNOTES 1 "Where, on the judgment's reversal, a cause is remanded, it returns to the trial court as if it had never been decided, save only for the 'settled law' of the case." Smedsrud v. Powell, 2002 OK 87, ¶ 13, 61 P.3d 891, 896. "The parties are relegated to their prejudgment status and are free to re-plead or re-press their claims as well as defenses." Id. "The doctrine embodies a call for judicial economy designed to prevent 'rehashing' of issues in successive appeals." Id. "In postremand summary process the settled-law-of-the-case doctrine operates upon all the facts revealed by the probative materials before the court at the time the law's settling took place." Id. 2 State ex rel. Bd. of Univ. of Okla. v. Lucas, 2013 OK 14, ¶ 8, 297 P.3d 378, 383. 3 Lucas, 2013 OK 14, ¶ 7 & n.5, 297 P.3d at 383 & n.5 (citing Ricks Exploration Co. v. Oklahoma Water Res. Bd., 1984 OK 73, 695 P.2d 498; Swan v. Sargent Indus., 1980 OK CIV APP 49, 620 P.2d 473 (approved for publication by Supreme Court); Samson Res. Co. v. Newfield Exploration Mid-Continent, Inc., 2012 OK 68, 281 P.3d 1278) (emphasis added). 4 In Native Wholesale Supply I this Court held that personal jurisdiction over Native Wholesale Supply was proper under the stream-of-commerce theory of personal jurisdiction. The Court found: This is not a case where the defendant is merely aware that its product might be swept into this State and sold to Oklahoma consumers. The sheer volume of cigarettes sold by Native Wholesale Supply to wholesalers in this State shows the Company to be part of a distribution channel for Seneca cigarettes that intentionally brings that product into the Oklahoma marketplace. Native Wholesale Supply is not a passive bystander in this process. Native Wholesale Supply I, 2010 OK 58, ¶ 24, 237 P.3d at 208. 5 At the hearing on the motion for summary judgment, the trial court had doubts about the Attorney General's settled-law-of-the-case argument but nevertheless granted summary judgment to the State: The Court: What I'm trying to understand is I understand the Supreme Court was deciding two issues: One was the personal jurisdiction issue and the other was the Indian Commerce Clause. Mr. Chaffin: Which apply-- The Court: Forget the Indian Commerce Clause. Personal jurisdiction, they have made a lot of findings in here, a lot conclusions written by Justice Opala-- Mr. Chaffin: Yes. The Court: --that supports personal jurisdiction, I understand that-- Mr. Chaffin: Yes, sir. The Court: --does that prove your case? Mr. Chaffin: The--many of those opinions prove that they had knowledge, that it was disingenuous to argue that, that they know--that they have to know it's being sold to the general public. There's no other reasonable conclusion. . . . . The Court: [I]'d like to make the distinction that they're just doing personal jurisdiction, but [the Court] was . . . very broad in what [it] said here. I'm bound by that. Record on Accelerated Appeal, Ex. 8 at 25-26. 6 Record on Accelerated Appeal, Ex. 4 at 14. 7 Counsel for Native Wholesale Supply stated at the hearing on the motion for summary judgment: The issue of whether the MSACA applies to my client has been decided. The issue of whether my client has violated the MSACA has not been decided. . . . The only way to hook us into the liability here is by this one statute, which the cite is 68 O.S. 360.7(E), which specifically says, you know, it's unlawful to sell cigarettes that the person knows or should know are intended for sale in violation of the Act. That's the fact question before you today. Did we sell with knowledge that these cigarettes are intended for sale in violation of the Act[?] . . . The fact that we made sales is not evidence of our knowledge of the intent of the people we sold to, to then violate the Act. And there's no evidence that they have presented that demonstrates that particular fact. Record on Accelerated Appeal, Ex. 8 at 12-13. 8 It is also undisputed that Seneca brand cigarettes have not been listed on the Oklahoma Attorney General's Directory since 2006 and have not been approved for sale within the state. See Record on Accelerated Appeal, Ex. 3 at 4; Record on Accelerated Appeal, Ex. 2 at 11. 9 The record indicates Native Wholesale Supply ceased selling to Muscogee Creek Nation Wholesale when this Court's opinion issued in July of 2010. See Record on Accelerated Appeal, Ex. 5 at n.2. 10 See Record on Accelerated Appeal, Ex.6 (filed under seal pursuant to agreed protective order filed January 8, 2013). 11 Because summary judgment was improper, I would not address whether the trial court erred by awarding 100% of the gross receipts of Native Wholesale Supply to the State for Native Wholesale Supply's violation of the statute.

db838397-8815-49cc-a5b0-81fd7e9c2c5a

In the Matter of the Guardianship of Berry

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE GUARDIANSHIP OF BERRY2014 OK 56Case Number: 111492 (Consol. w/111961); 112Decided: 06/24/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE GUARDIANSHIP OF FOSTER CALVIN BERRY and DAUGHTREY NELL BERRY, Husband and Wife, incapacitated persons, JAMES BERRYHILL and ANITA BERRYHILL Appellants, v. JEFF K. RHODES, SEAN P. HENNESSEE, of RISELING & RHODES, P.C., and CHRISTOPHER I. MANSFIELD, Guardian, Appellees. and IN THE MATTER OF THE GUARDIANSHIP OF FOSTER CALVIN BERRY and DAUGHTREY NELL BERRY, Husband and Wife, incapacitated persons, JAMES BERRYHILL and ANITA BERRYHILL, Petitioners, v. THE HONORABLE TERRY H. BITTING, SPECIAL DISTRICT JUDGE, TULSA COUNTY, STATE OF OKLAHOMA, Respondent. AND IN THE MATTER OF THE GUARDIANSHIP OF FOSTER CALVIN BERRY and DAUGHTREY NELL BERRY, husband and wife, incapacitated persons; JAMES and ANITA BERRYHILL and DAVID BERRY, Petitioners, v. THE HONORABLE TERRY BITTING, SPECIAL JUDGE OF THE DISTRICT COURT, TULSA COUNTY, STATE OF OKLAHOMA, Respondent. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY AND APPLICATIONS FOR EXTRAORDINARY RELIEF ¶0 A daughter was appointed special guardian for her parents. Two lawyers entered an appearance on behalf of the parents and alleged that the parents had selected them as nominated counsel. The daughter sought to be named guardian and then a nephew and niece of the parents sought to be named guardians. Upon agreement of the parties an independent guardian was named. Hearings were held and an order issued that (1) rejected the two lawyers as nominated counsel for the parents and (2) denied a motion to reconsider a previous denial of a motion for unsupervised visitation by the nephew and niece and change of guardian to the nephew and niece. The allegedly nominated attorneys commenced an appeal which the Supreme Court retained. The trial court also denied a motion for emergency relief to change supervised visitation. A request for extraordinary relief from supervised visitations was filed during the appeal and the request was consolidated with the appeal. Subpoenas duces tecum were quashed relating to the wards' trusts. An additional request for extraordinary relief was filed during the pendency of the appeal based upon the order quashing the subpoenas, and we treat that proceeding as a companion case. We hold that there is sufficient evidence to support the trial court's adjudication that nominated counsel had a conflict of interest and were not independent, and that the Petitioners failed to show that the trial court committed an abuse of discretion or acted in excess of its authority when it denied an emergency motion to modify the supervised visitation, and that while the trial court incorrectly ruled that it lacked jurisdiction to issue subpoenas duces tecum to a trustee of a ward's trust, it must hold a hearing on the objections to the discovery request and adjudicate which parties are entitled to participate in the discovery and determine whether a sustainable objection to discovery exists pursuant to the Discovery Code. No. 111,492 Consolidated with No. 111,961: ORDER OF THE DISTRICT COURT DATED JANUARY 18, 2013 IS AFFIRMED; ORIGINAL JURISDICTION ASSUMED; PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION ARE DENIED. No. 112,573: ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF PROHIBITION GRANTED WITH DIRECTIONS Appearances in Cause No. 111,492 & No. 111,961: John B. Nicks, Crutchmer & Barnes, PLLC, Tulsa, Oklahoma, for James and Anita Berryhill. Russell L. Mulinix, Lindsey W. Mulinix, Mulinix, Ogden, Hall & Ludlam PLLC, Oklahoma City, Oklahoma, for James and Anita Berryhill. Jeff K. Rhodes and Sean P. Hennessee, Riseling & Rhodes, PC, Tulsa, Oklahoma, for Foster Calvin Berry and Daughtrey Nell Berry. Clifton Baker and Steven Wyers, Baker & Wyers, PLLC, Tulsa, Oklahoma, nominated attorneys for Foster Calvin Berry and Daughtrey Nell Berry. Randall A. Gill, Tulsa, Oklahoma, for Riseling and Rhodes, PC. Randall E. Rose, The Owens Law Firm, PC, Tulsa, Oklahoma, for Peggy Jan Harris William R. Grimm, Barrow & Grimm, Tulsa, Oklahoma, for Christopher Mansfield Appearances in No. 112,573: Russell L. Mulinix, Lindsey W. Mulinix, Sally Ketchum Edwards, Mulinix Ogden Hall & Ludlam, Oklahoma City, for James Berryhill and Anita Berryhill Jeff K. Rhodes and Sean P. Hennessee, Riseling & Rhodes, P. C., Tulsa, Oklahoma, for Daughtrey Nell Berry. Randall A. Gill, Tulsa, Oklahoma, for Daughtrey Nell Berry. A. Scott McDaniel, Stacy L. Acord, McDaniel Acord, PLLC, Tulsa, Oklahoma, for Christopher Mansfield EDMONDSON, J. ¶1 This proceeding involves a request for an extraordinary writ that is recast as appeal from an order in a guardianship that adjudicated the wards' selection of counsel and adjudicated a motion concerning unsupervised visitation and selection of a guardian.This proceeding also involves two requests for extraordinary relief that were made during the appeal.1 The first involves an emergency motion for modification of supervised visitation and the second involves the trial court's order quashing subpoenas. The Berryhills state that there was no evidence to support the trial court's adjudications, so we turn first to the facts in the record before us. I. ¶2 Foster Calvin Berry2 and Daughtrey Nell Berry, husband and wife, are the parents of two adult children, Jan and David. In 2011 Jan became concerned about her parents and had a company which performs assessments on "elderly geriatric and disabled persons" assess her parents. ¶3 Jan filed in the District Court a verified petition seeking an emergency special guardianship. The petition related results from examinations or assessments performed on Foster and Daughtrey. Photocopies of Foster's and Daughtrey's August 2011 "Durable Power of Attorney and Nomination of Guardian" were attached as exhibits showing Foster and Daughtrey name each other as Agent (and guardian of the person) with each of their children, Jan and David, named as an alternate health care proxy and alternate guardian of the person of each.3 ¶4 On Jan's verified petition, an emergency special guardianship hearing was held before the Honorable Kurt G. Glassco, District Judge. Jan testified that: (1) She knew that a law firm had represented her parents and had prepared an estate plan; (2) She knew that Edward Jones Company was the trustee of her parents' trust4 and she was willing to continue that relationship; (4) She wanted to employ personnel necessary to provide 24-hour care for her parents; and (5) She was a "master's degreed social worker" employed by the U. S. Army, and that she possessed a certain security classification. On cross-examination she testified that until the last few months prior to the hearing she had visited her parents "about every third week," did minor repairs around their house, and transported her father to medical appointments. She testified that she had recently become concerned about her parents. She testified that "the elder care unit of the Department of Human Services" had been to her parents' house three times to check on them in the month previous to the hearing. ¶5 At the hearing, counsel informed the court that the caregiver for Foster and Daughtrey had "been reported to Adult Protective Services" resulting in "an on-going, open investigation." Counsel also argued that Daughtrey's son was prohibited by law from being named a guardian or serving in a fiduciary capacity for either of his parents. Jason Fields, from the firm of Riseling and Rhodes, appeared for both Foster and Daughtrey. Robin Owens appeared on behalf of Jan. Fields argued that there was no objection to Jan as an emergency special guardian of Foster and Daughtrey, but that she should not be named as guardian of their property. He argued that whatever estate planning the Berrys had previously put in place should remain without alteration by the court or a guardian. He argued that the Berrys had been scheduled to sign legal documents the day before the hearing, and that it was the opinion of the Berrys' financial advisor and an attorney at his firm concerning the Berrys' capacity: "they know what's going on." ¶6 Jan was appointed Special Guardian for her parents. The court also ordered that the powers of attorney previously executed by Foster and Daughtrey be "held in abeyance pending further Court Order." The order stated that the Special Guardianship would remain in force until 9:30 A.M. on Oct. 24, 2011, subject to further orders of the court. Id. The "Letters of Special Guardianship" were filed in September 2011, and limited the guardianship duties to management and control of certain aspects of the persons and estates of Foster and Daughtrey. ¶7 Four days after the hearing Clifton Baker and Steven Wyers, attorneys at law, entered appearances on behalf of Foster and Daughtrey as their nominated attorneys, and Foster and Daughtrey objected to the Special Guardianship. Their pleading requested an order suspending the Order and Letters of Guardianship naming Jan as guardian until a hearing to determine the capacity of the wards, and in the alternative to appoint either a guardian selected by the wards or a neutral guardian. ¶8 A hearing was held before the Honorable Millie Otey, Special Judge of the District Court. Jason Fields appeared for Foster and Daughtrey and argued that if they had the capacity to make the decision to hire new attorneys, then that would be their choice for counsel. He argued that because the court had previously determined that they were incapacitated "that calls into question their ability to be able to hire an attorney" and an evidentiary hearing was necessary to determine their choice of counsel. ¶9 At the hearing, counselors Baker and Wyers appeared for Foster and Daughtrey as nominated attorneys and requested that the rights of the guardian be "suspended or limited" until an evidentiary hearing be held. Attorney Baker explained that James Berryhill, Foster and Daughtrey's nephew, and James' wife, Anita, brought Foster and Daughtrey to his office seeking relief from the guardianship. After hearing argument and testimony from witnesses, Judge Otey specified that the Berrys be returned to their home after having been removed by the Berryhills, and that the Berrys be provided with health care at home twenty-four hours a day, seven days a week. ¶10 The judge also ordered that Foster and Daughtrey's son could have supervised visitation with his parents, and that the Berryhills could have supervised visitation with Foster and Daughtrey. Judge Otey also suspended all powers of attorney until termination or reinstatement by another judge who was assigned to hear the controversy. She also ordered that the Berrys have access to any of their funds in order for them to be able to sustain their lifestyle. She ordered that keys to the home be given to the guardian, agent for the guardian, the wards, and the home healthcare company. She ordered that the Berryhills not be given a key to the home. For much of this hearing the Berryhills had been outside the courtroom and no counsel had entered an appearance on their behalf, but at one point Mr. Baker informed the court what the Berryhills would testify to if called as witnesses. Tr. at 55. Mr. Wyers was then directed to go out into the hallway to determine if the Berryhills still possessed financial documents they had removed from the Berrys' home to a location in the State of Texas. Tr. at 57. The judge directed counsel to have the Berryhills come into the hearing where the judge ordered them to return the documents. ¶11 Judge Otey entered a temporary protective order that required a person employed in the home by the Berrys, Dee Penney, to have no contact with the Berrys until the assigned Judge made a determination on her employment in the home. The judge also ordered neuropsychological testing with a report to be made to the judge assigned to the controversy. After discussion of counsel, the judge ordered counsel for the special guardian, then present counsel for the Berrys, and nominated counsel for the Berrys to each provide a list of four names of professionals who customarily perform such tests for the judge to select a name for the person to perform the tests. ¶12 The day after the hearing Baker and Wyers filed a motion for an emergency hearing "on a clarification and interpretation of the Court's orders, for clarification of the amount and extent of the Guardian and/or her Agent, to control the Wards' lives, and to define the extent or limitations on Wards to continue their lives; consideration of removal of the Agent; for consideration of a Co-guardian located in the state who can act with authority for the best interests of the Wards; and for attorney fees on the prosecution and conclusion of this unnecessary Motion to protect the interests of the Wards." O.R. at 68, 70-71. The allegations of the motion included that a caregiver was employed by Jan for her parents, and that this agent for Jan impermissibly restricted the wards from moving freely whenever and wherever they choose, and that other restrictions imposed by Jan and this agent were undue burdens and restrictions on their "lifestyle of freedom." O.R. at 70. ¶13 On October 7, 2011, Jan filed a petition for the appointment of a general guardian for her father and mother. On October 21, 2011, James and Anita Berryhill filed a Petition For Appointment of Special and Limited Co-Guardians for the purpose of them being named guardians for Foster and Daughtrey. Exhibits to the application were "Nomination of Co-Guardians" signed by Foster and Daughtrey that named James and Anita as the co-guardians of their persons and estates. The nominations of co-guardians were dated October 21, 2011. The attorney filing the Petition was Clifton Baker. O.R. at 115, 119. One week later a Notice of Substitution Of Counsel was filed giving notice that Baker and Wyers were withdrawing as counsel of record for James and Anita Berryhill and Matthew Hall was therein entering an appearance as counsel for James and Anita Berryhill. James and Anita filed an objection to Jan's petition for appointment and they alleged that facts stated in Jan's petition were not correct. ¶14 The record on appeal contains an Order Appointing General Guardian stating that on October 24, 2011, a hearing in the District Court was held and that appearances were made by Daughtrey along with several lawyers. The order states that testimony was heard and the pleadings were examined. The adjudications and determinations of the assigned trial judge, Judge Terry Bitting, included but are not limited to the following: that proper notice of the proceeding had been given, that Foster and Daughtrey were residents of Tulsa County, that Jan had standing to petition for the appointment of a guardian, the Court had previously appointed a Special Guardian of the Person and Estate of the Wards, the evidence was clear and convincing of incapacity of the wards as to all aspects of daily living, testimony of Daughtrey included that Foster could not attend due to a fall resulting in cracked ribs and a painful condition requiring rest, that the health and safety of the wards would be seriously affected unless action was taken by the court, the wards were subject to deception, undue influence, and exploitation as to their financial resources, and that a general guardian should be appointed for their person and property because no less restrictive alternative was available at that time to provide the wards with necessary care and assistance. The order states that "By agreement of the parties and their counsel, Christopher I. Mansfield is appointed General Guardian of the Person and Estate of the Wards." O.R. at 148. The order required the wards to meet with a specified person and that person's staff for examinations. The order required the Berryhills to deliver to the general guardian "all tangible and intangible property belonging to the Wards which is currently held by the Berryhills." ¶15 All other pending issues were ordered to be held in abeyance until the report of the examinations was filed with the court. The protective order remained in effect and the supervised visitation remained in effect. The trial judge also determined that it was necessary to order that "The parties will abide by the Judicial Order of Proper Conduct and shall not discuss the Guardianship, financial matters or make derogatory remarks about the parties to the Wards." ¶16 Judge Bitting's Order for Proper Conduct included directions to the relatives of the Wards to not argue or fight in the presence of the wards. They were also directed to keep their visits short and pleasant with the Wards and not to criticize other relatives and the litigation or discuss any other topic likely to cause the wards to become agitated. ¶17 A hearing commenced in April 2012 with the assigned judge directing the lawyers in the case to limit their motions to raising facts and law in a professional manner, and she directed them to stop making personal attacks in motions filed with the court. This hearing was on a motion brought by the general guardian to dismiss allegedly improperly filed claims and for legal fees. The Berrys were not present. Attorney Baker testified that he had visited with the wards in a "private attorney-client relationship conference" the day before the hearing and that they knew that a hearing was being held. Attorney Wyers, also in a representative capacity for the wards, stated that James Berryhill had contacted his office to state that the wards had declined to attend due to the actions of the guardian. Attorney Baker stated that he had not been stopped from meeting with the wards. A recess occurred, a telephone call was made, and upon the court reconvening the Berrys were in attendance. ¶18 The guardian testified that various loving family members had different perspectives on what was best for the Berrys and that the Berrys were "in the proverbial tug-of-war." He testified that the Berrys could stay in their home with 24-hour assistance "but it isn't going to be a true, practical outcome if everybody can't stop aggravating and upsetting them." He reiterated that "just because people are not adult enough to put their personal feelings aside, Mr. and Mrs. Berry are caught in the middle of a family tug-of-war." Mansfield argued that while the "neuropsych" had been filed as ordered, several inappropriate filings had occurred and should be stricken, fees should be assessed, and "assets be returned appropriately for the use of the wards, . . . the greater purpose for me and should be for everybody else is to let these people have a peaceful, happy life." ¶19 Judge Bitting noted that both the wards were present and that she wanted the wards to testify as to any lawyers they wanted to represent them. The transcript of this hearing then shows long arguments from the lawyers giving their respective views on what they perceived to be the facts of the case including unsworn allegations concerning the mental status of the wards, the use of their funds by various individuals, objections to the mental examination reports, whether Baker and Wyers also represented the Berry's son David in a "trust action" that had occurred in the District Court simultaneous to the guardianship, time for the attorneys to prepare for a hearing on the wards' selection of counsel, and whether the court should appoint a guardian ad litem for the wards. The Court ordered that a hearing be scheduled on the issue of the wards' selection of counsel. ¶20 One week later the parties were back in court for a hearing on the selection of counsel by the wards. Counsel for the Berryhills and nominated counsel for the Berrys argued that the status of the guardianship should be addressed first. The Court disagreed, and attorney Baker was sworn as a witness and testified. He testified that his representation of the Berrys commenced on September 29, 2011, after having previously met them two to three days earlier. He testified that James Berryhill contacted his office to determine if he handled guardianship cases, and then on that day the Berryhills drove the wards to his law office and introduced the Berrys to him. He testified that when he met with the Berrys he was informed that they were subjects in a guardianship proceeding. He testified that he had "concern" because estate planning documents had been prepared by a different attorney and signed by the wards several weeks prior to his meeting with the wards, but that he saw no reason to contact and inform that lawyer of his representation of the wards because Baker's representation was in a guardianship, an issue he considered to be separate from estate planning. ¶21 Baker testified that James and Anita Berryhill gave him a check for $5,000 on September 26, 2011, to initially retain him for his legal services for the Berrys. He testified that the source of the funds was from "Mr. Berryhill's or Mrs. Berryhill's checking account." Tr. May 30, 2012, p. 53. He testified that he had been informed by the Berryhills that they wanted a guardianship for the Berrys. Baker testified that the Berrys indicated that they did not want a guardianship. Tr. at p. 54. However, he also testified that the Berrys thought they should be under a guardianship. Tr. at p. 55-56. Baker testified that in his opinion it was not a conflict of interest to be paid from two people seeking to be named guardians while representing wards who objected to the guardianship. Tr. May 30, at p. 54. He testified that he had filed a petition for guardianship on behalf of the Berryhills and then did a "substitution of counsel." Tr. at p. 56. He testified that he represented the Berryhills "pro bono" and that he did not recall who had paid the filing fee. Tr. at p. 57. He testified that his representation of the Berryhills was "for one day." Tr. at p. 57. ¶22 Baker testified that he also represented the Berrys' son, David, in an action "to challenge the trust" of his parents, "not trying to break it" but "just challenging the most recent version of the trust." Tr. at 58. He testified that while he would not represent the Berrys concerning their estate plan because they already had a lawyer for that, it was permissible for him to represent someone else with regard to the Berrys' estate plan in the context of challenging or seeking to change that plan with regard to the Berry's trust. Trans. at p. 57-58. He stated that David did not pay him legal fees, he represented David pro bono, and that he did not probably keep records of the time he spent working on David's case. ¶23 At the hearing on July 11, 2012, Dr. Bianco testified he administered reading, comprehension, and memory tests to the wards. Tr. at 58, 60-61. He testified concerning the wards' ability to comprehend what they read as well as problems with comprehending and remembering what was read to them. Concerning Daughtrey's understanding a contract, he testified concerning her difficulty understanding what she read, and what she would not remember or retain. Tr. at 16. When questioned concerning his diagnosis and a previous test administered by Susan Boyd, Dr. Bianco stated that "I looked at it. I didn't include it in my diagnosis criteria." Tr. at p. 33. He also gave his opinion concerning their ability to be cognizant to execute documents within thirty to sixty days prior to the commencement of the guardianship. Tr. at 46. ¶24 Daughtrey testified she did not know who was in charge of her trust, and that it could be 20 years since she named a trustee. Tr. at 58, 60-61. (Evidence was presented in the hearings concerning documents signed by Foster and Daughtrey a few weeks before the guardianship for a change in a corporate trustee.) She stated she did not know whether Baker had represented someone else in litigation involving her trust and that she would "be surprised" if "he wouldn't work with us about our trust." Tr. at 62. She testified that if Baker worked with someone else concerning her trust it was without her knowledge or permission. Tr. at 62. ¶25 When questioned whether she had a lawyer, she pointed to Mr. Baker but appeared to have difficulty stating his name. Tr. at 63-64. After being told his name, she stated that Baker and Wyers were her lawyers and she wasn't sure whether she had any previous lawyers. She testified she hired Baker three or four years previously. Tr. at 65. When asked by the guardian why she hired Baker, she asked Mr. Baker for assistance in answering the question. Tr. at 66. She testified she hired Baker to do "whatever lawyers do." She testified she was comfortable with Baker, liked him, and wanted him to be her lawyer. She testified the Berryhills were her present guardians. Tr. at 75. She also testified Mansfield was her guardian, and she gave permission to Baker for Mansfield to be her guardian. Tr. at 77. She testified she had caretakers in her home "around the clock" and "They're doing a good job." Tr. at 84. She testified the Berryhills assisted her in finding Mr. Baker and that, when asked if the Berryhills "sit in meetings with you when you met with Mr. Baker," she answered "I think so." Tr. at. 68. She testified she was "not sure" whether the Berryhills participated and spoke during those meetings. Tr. at 68. ¶26 Foster Berry had been absent from some of the proceedings due to medical issues but was able to attend a hearing in October 2012. He testified he loved both of his children, Jan and David. He testified his daughter was "very pleasant" and that he had "very fine" relationships with her and David. He testified he became aware of the guardianship that was filed in 2011 "five, six, seven years ago I guess." Tr. at 12. Foster testified he remembered going to Baker's law office but he could not remember why. Id. He testified he remembered meeting Baker's law partner, but could not remember what was discussed. Id. When asked by Baker if he remembered going over guardianship papers with him, Foster testified, "Yes." He testified he preferred James Berryhill and his wife Anita as his guardians instead of his daughter Jan. Foster also testified he did not remember who drove him to Baker's office and that he did not remember meeting Baker at his office. Tr. at 20. ¶27 Baker asked Foster a leading question concerning whether Foster wanted Baker and his partner to represent him, an objection thereto was sustained; and then after an additional question with Baker explaining to opposing counsel that Baker was asking Foster to identify who he wanted as counsel, Foster testified that he wanted "You and your partner." Tr. at 22. Then on cross-examination Foster testified that he did not know Baker's partner. Tr. at 23. ¶28 Foster testified he remembered hiring Mr. Riseling "probably eight or nine years ago" but would not disagree if someone said he hired him in 1988. Tr. 26. He testified he did not know why he had not hired Riseling for the guardianship. He testified he hired Baker on the suggestion of his niece. ¶29 Steve Care testified he had been financial advisor to the Berrys for 18 years. He testified he thought that the Berrys were pleased with the representation of the Riseling & Rhodes firm and it surprised him that they obtained Mr. Baker for representation in the guardianship. Tr. at 48. He testified he had never specifically inquired of the Berrys whether they had any preference on their choice of counsel. ¶30 Jason Fields testified he had represented the Berrys at previous hearings due to his employment with Riseling and Rhodes, and he had not assisted with planning, filing, or "putting together" the guardianship by Jan Harris. Tr. at 57. He testified the firm asked him to contact the Berrys and he had a conversation with Mrs. Berry Tr. at 62. He testified Mr. Rhodes of the firm spoke with Mr. Berry. Tr. at 64. He stated he had an appointment for the Berrys to meet with him at his office and on the same day they went to meet with Mr. Baker instead. Tr. at 65. He testified he had argued against the guardianship; and in the alternative, that if the court imposed a guardianship it should be in accordance with the Berrys' estate planning documents. Id. ¶31 Additional testimony was given by Clifton Baker. He testified he had filed an entry of appearance for David Berry in the guardianship proceeding for both Baker and Wyers. Tr. at p. 71. See O.R. at p. 281. Baker's entry of appearance stated that David was the son of the wards, beneficiary of their trusts, designated as attorney in fact in the wards' power of attorney, and was a petitioner in two related and specified causes, and that David requested that all correspondence and pleadings be directed to his counsel, Baker and Wyers. O.R. at 281. Baker signed both the appearance and the certificate of mailing. Concerning this appearance, Baker testified that "I don't have any memory of doing it or why." Tr at 72. Baker testified he never considered himself as representing David Berry in the guardianship case, and he did not know of any conflict of interest between David Berry and his parents. He testified that, if the court approved his nomination as lawyer for the Berrys, then he would be willing to file a withdrawal of his representation for David. Tr. at 73. ¶32 The trial judge's decision was filed in January 2013. The order stated that a Holly hearing was held on May 30, July 30, August 17, and October 31, 2012, and that the judge had considered the testimony. The judge rejected Baker and Wyers as the wards' choice of counsel, and left the wards represented by attorneys they had employed several years earlier for estate planning, the law firm of Riseling & Rhodes. II. Procedural Posture of Choice-of-Counsel Appeal ¶33 An application for an extraordinary writ was filed in this Court and review of the judge's order was sought. The application for an extraordinary writ requested relief from two adjudications made by the trial judge that were memorialized in the form of a single order. The first involved the choice of lawyers made by the wards. The second was a challenge to an order which restricted the access of the parents to certain individuals including members of their family. ¶34 Several statutes defining orders as appealable focus on the nature and substance of the order,5 and we have stated that appealability is based upon "orders defined by statute to be subject to immediate appellate scrutiny."6 For example, appellate jurisdiction is invoked to review final orders,7 judgments,8 an enumerated class of interlocutory orders,9 and a separate class of interlocutory orders where the exercise of appellate jurisdiction is discretionary.10 Interlocutory orders that are not made subject to immediate appellate scrutiny may nevertheless obtain appellate scrutiny upon an appeal from a subsequent appealable order or judgment.11 ¶35 In addition to the general statutes for civil procedure codified in Title 12 of the Oklahoma Statutes, the Legislature has provided for appeals in specific types of proceedings. For example, in 30 O.S.2011 § 3-106(A)(6) the Legislature provided for an appeal by an individual who is alleged to be or found to be an incapacitated person. This statute provides an appeal for this person to appeal "adverse orders and judgments as provided by the rules of civil procedure."12 In addition to 30 O.S. § 3-106, certain orders in guardianship cases are made appealable by 58 O.S.2011 § 721.13 Application of these statutes requires examining the nature of the decisions brought for our review. ¶36 The first decision of the trial court rejected Baker and Wyers as the wards' choice of counsel, and left the wards represented by attorneys they had employed several years earlier for estate planning, the law firm of Riseling & Rhodes. In Towne v. Hubbard, 1999 OK 10, 977 P.2d 1084, we explained that an appeal from an order adjudicating a ward's choice of counsel was an appeal from an interlocutory order pursuant to § 721 as an appeal from an order affecting a substantial right: "An appeal may be taken from the following judgments or orders of the district court: . . . 10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right." 58 O.S.2011 § 721(10). ¶37 Section 721 refers to an order in a "probate cause" and a guardianship is one type of probate cause.14 Additionally, in Towne we supported our conclusion on the appealability of an order adjudicating one's choice of counsel with a citation to State ex rel. Reirdon v. Marshall County Court,15 where we explained that an order affecting a substantial right in a probate cause was appealable and that this type of probate appeal does not require a final order as in an ordinary civil appeal.16 We expressly stated that the appeal was from an interlocutory order, and repeated this characterization of the order in the subsequent Towne opinion in 2000.17 ¶38 We have recast an application for extraordinary relief to a petition in error when a party complained that a ward did not receive a constitutionally proper evidentiary hearing on the issue of a ward's choice of counsel, and when the application for extraordinary relief was filed within the time to commence an appeal.18 The petition for an extraordinary writ was filed in this case within the thirty-day requirement specified in 12 O.S.2011 § 990A for commencing an appeal of an interlocutory order.19 We thus recast the challenge to the trial court adjudication on the issue of the wards' choice of counsel as a timely appeal from an interlocutory order pursuant to 58 O.S. § 721(10) and 12 O.S.§ 990A. ¶39 The choice-of-counsel order is an interlocutory appeal made appealable by the nature of the trial court's adjudication; i.e., a choice-of-counsel adjudication affecting a substantial right. However, appeal from an order adjudicating one's choice of counsel does not make the other unrelated issues in that order also appealable. ¶40 In Conterez v. O'Donnell,20 we stated: All prejudicial error that stands preserved by the record through an intermediate order or proceeding that precedes any appealable decision is inchoately reviewable together with all other errors asserted to be present in the appealable disposition before the court. This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a). An aggrieved party has the unquestionable right to secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision. 2002 OK 67, ¶ 10, 58 P.3d at 762 (note and emphasis omitted). This language does not allow all issues and disputes in a cause or controversy to become part of a subsequent interlocutory appeal in the cause. The statute cited, § 952(a), expressly states that the Supreme Court "may reverse, vacate or modify judgments . . . and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof." 12 O.S.2011 § 952(a) (emphasis added and material omitted). The quoted language from Conterez refers to appellate review of orders anterior to judgment that are reviewed in an appeal from a judgment. Similar language appears in State v. One Thousand Two Hundred Sixty-seven Dollars, where the Court also relied upon § 952(a).21 Conterez and State v. One Thousand Two Hundred Sixty-seven Dollars, are consistent with our opinions explaining that intermediate or interlocutory orders anterior to judgment may be reviewed on appeal from the judgment.22 We have before us an appeal from an interlocutory order. We do not have an appeal from a judgment and the language in Conterez and similar opinions on the scope of appellate review does not apply to the present controversy. ¶41 If the substance of an interlocutory order contains both adjudications of issues that are immediately appealable and adjudications on other issues that are not immediately appealable, then only that part of the order adjudicating immediately appealable claims may be reviewed on an immediate appeal of the interlocutory order. For example, in Whig Syndicate, Inc. v. Keyes, the trial court stated that it was entering a "judgment" on five issues, one of which was whether class action relief was proper.23 In Whig Syndicate this Court explains that an order certifying or refusing to certify an action to be maintained as a class action is appealable even though interlocutory,24 but that the other four interlocutory issues are not immediately appealable and they "are in no posture for appellate review."25 We first focus on the choice-of-counsel issue which is construed as part of a timely and proper appeal. III. Wards' Choice of Independent Counsel ¶42 Jason Fields testified that he appeared on behalf of Foster and Daughtrey because of his association with the firm of Riseling and Rhodes and at the direction of attorney Rhodes after his conversation with Foster. Baker and Wyers state that they have been the attorneys for Foster and Daughtrey pursuant to an agreement their clients signed after the guardianship was created and their wishes expressed in testimony to the court. ¶43 In In re Towne, we held that a prospective ward is entitled to an attorney of his own choice unless the trial court concludes after an evidentiary hearing that the attorney is not independent or has a conflict of interest.26 After hearing several witnesses at more than one hearing and providing everyone involved an opportunity to present evidence and argument, the trial judge made several findings and concluded that Clifton Baker and Stephen Wyers were not independent and had a conflict of interest with the interests of the wards. ¶44 The trial court's findings included the following. The Special Guardianship was created on September 23 and three days later the Berryhills responded to that proceeding by transporting the Berrys to the firm of Baker & Wyers which had been selected by the Berryhills. The Berryhills transported Daughtrey to a bank to remove $182,191.26 from Daughtrey's account(s) and the funds were deposited into Anita Berryhill's account at a different financial institution. Personal financial documents of the Berrys which had been in their home were removed by the Berryhills to a location in the State of Texas. We note that Baker testified that he received a $5,000 check as a retainer from Anita Berryhill three days prior to the creation of his contract to represent the Berrys. May 30, 2012, Tr. at 52. ¶ 45 The $5,000 retainer paid from Anita Berryhill's funds was in addition to $15,000 also collected as a retainer by Baker and Wyers. In May of 2012, James and Anita Berryhill filed an application in the trial court for reimbursement from the Berrys claiming that they had spent their own funds on behalf of the Berrys, including the $5,000 paid to retain Baker and Wyers and a $2,000 loan to Foster in order for him to open an account at a credit union. O.R. at 321-325. This application states that Mr. Wyers met with the Berryhills at a credit union where $182,191.26 was deposited into Anita Berryhill's account "with the Wards listed as beneficiaries if anything were to happen to Anita Berryhill." O.R. at 322. The application also states that both Mr. Wyers and Mrs. Berry were with the Berryhills at the credit union, and upon direction from Mr. Wyers an additional retainer of $15,000 was paid to Mr. Wyers for legal services. Id. The Berryhills state that when the special guardian, the Berrys' daughter, discovered the credit union accounts and made an attempt to "acquire" the funds, they then transferred most of the funds to a Bank of America account. They state that when they transferred funds to Bank of America, Foster told the Berryhills to reimburse themselves for the initial $5,000 payment to Baker and an additional $2,000 used to open a credit union account in Foster's name. Anita Berryhill states she advanced from her own funds weekly amounts to Daughtrey. She also stated she advanced her own funds to cover checks written by David Berry for the benefit of his parents. She claimed that she had given money to David at the direction of Daughtrey and she sought recovery for these funds. She also claimed she had spent her own funds for the benefit of the Berrys, including money spent on meals for the Berrys, mailing packages of the Berrys' financial documents which had been in her possession to the guardian and counsel for the special guardian, and medication she bought for Foster. Id. Many of the amounts for which she sought restitution from the Berrys were based upon expenses which she had alleged to have made prior to the date that Baker and Wyers filed an appearance in the District Court on behalf of the Berryhills and sought a guardianship status for the Berryhills over the Berrys. ¶46 The trial court's findings also included the following. Upon notification of the special guardianship, the Berrys were removed from their home by the Berryhills and allegedly taken to the Berryhills' home in Texas. The actions were taken without the court's permission, and without notice to, or permission of, the special guardian. Susan Boyd, R.N., who was managing the Berrys' care pursuant to employment by the special guardian, requested that the Berrys be returned home and an employee of Adult Protective Services made the same request. Judge Otey then ordered that the Berrys be returned to their home, and that the Berryhills return the Berrys' financial documents by sending them to counsel for the special guardian. Judge Otey specifically ordered that keys to new locks on the home be given to the Berrys, their guardian, and care manager, and that a key was not to be given to the Berryhills. ¶47 The decision of the trial court further states that "The Court Ordered the Wards' monies returned to the Guardian, which was accomplished with resistance. The need for the Berryhills' communications with wards to continue to be monitored should come as no surprise." O.R. at 664, 670. The decision then states that: "The Berryhills did not fully return all of the funds removed from Daughtrey Berry's account(s)." Id. The court stated that "Particularly concerning to the Court was testimony about funds belonging to the Berrys, being removed from Daughtrey Berry's account(s) and being placed in the name of Anita Berryhill, after knowledge that a Special Guardian was in place and with knowledge and participation of Wards' nominated counsel." Id. at 672. The court made a finding that the transfer of funds was "with knowledge and assistance of the nominated attorneys [and such] is further evidence of attorneys lack of independence and further that there is a conflict of interest." O.R. at 673 (explanatory phrase added). ¶48 Additional findings of the court in its decision included the following. Baker appeared before the Honorable Millie Otey on September 27, 2011, "in the capacity of challenging the guardianship." Less than a month later, on October 21, 2011, Baker filed a petition on behalf of the Berryhills for them to be named guardians of both the persons and property of Foster and Daughtrey. We also note that on that same day Baker and Wyers also filed an entry of appearance on behalf of the Berryhills. The court also made a finding that Baker and Wyers had entered an appearance on behalf of Berry's son, David, and Baker testified that he represented David in a contemporaneous proceeding involving the Berrys' trust. Further, "The Court observed that on occasion when the Wards were not present, that when nominated counsel were asked where his clients were, Mr. Baker asked the Berryhillls whether the Berrys were coming to court." O.R. at 674. ¶49 Nominated counsel, Baker and Wyers rely upon testimony of Foster and Daughtrey that the wards stated that they wanted Baker and Wyers as counsel. The trial court recognized this, but concluded on these facts that Baker and Wyers were not independent, and that the wards lacked the capacity to understand the conflicts of interest and then knowingly waive them. The court's decision noted that the report of Dr. Bianco discussed the wards being subject to "manipulation, undue influence, coercion, deception, duress, harassment and false representation" relating to mental deficits. The trial court stated that: "It was clear from the testimony of witnesses and from the Court's observation of both wards during many hearings that . . . Mrs. Berry often did not recall why she was there, even after numerous explanations by the Court . . . Both Wards had difficulty in subsequent hearings recalling events close in time to hearing dates . . . [and] Mrs. Berry, in particular, was very easily led during testimony and it was evident that she was concerned about giving the 'right' answers. She would begin to make statements when other witnesses were testifying and would read from a pad of paper she kept with her." O.R. at 671. Mrs. Berry testified that she was "pretty sure" that she gave Baker permission to agree to Mansfield being the guardian and that he was still her guardian. However, she also testified at the same time that her guardian was "Anita and Jim [Berryhill]." ¶50 We have explained that judicial removal of a litigant's choice of counsel in a non-guardianship proceeding is used "under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process."27 We also explained that "disqualification is such a drastic measure that it should be invoked if, and only if, the Court is satisfied that real harm is likely to result" and that the burden of the moving party must be shown by a preponderance of the evidence.28 However, in the context of a guardianship proceeding the procedure and the purpose for disqualification statutorily is slightly different in that the court makes an independent inquiry29 for not only conflict and a lack of independence on the part of counsel, but also if the representation would be detrimental to the best interest of the ward. G. In all cases where independent counsel is retained by or on behalf of the subject of the proceeding, the court shall make independent inquiry to determine whether counsel is independent and whether any conflict of interest exists which would preclude proper representation of the subject of the proceeding or which would be detrimental to the best interest of the subject of the proceeding. The court shall appoint other counsel where retained counsel is found not to be independent. 30 O.S.2011 § 3-107(G) (emphasis added). The issue whether a ward's choice of counsel may be judicially denied pursuant to § 3-107 based upon a best-interests finding in the absence of a showing that the ward's choice has a conflicting interest or lacks independence is a question that is not before us. The trial court's ruling herein is based solely on a determination that Baker and Wyers had a conflict and lacked independence. ¶51 Baker testified at the initial meeting with the Berrys he knew of the guardianship proceeding, and the Berrys did not want a guardianship. May 30, 2012, Tr. at 53, 55. He also testified the Berryhills wanted a guardianship. Id. Tr. at 54. He then testified no conflict of interest existed because the Berrys had changed their original position and they had come to believe that they should have guardians. Id. Tr. at 55-56. Baker testified that at the time he was hired the Berrys did not have a lawyer for the guardianship because the legal representation then being provided by Mr. Rhodes involved estate planning. Tr. at 44. ¶52 Baker testified the work Mr. Rhodes performed related to the Berrys' trusts and powers of attorney. Tr. at 40-41. Baker testified he thought it would be improper for him to do estate planning for the Berrys. Tr. at 45. However, although Baker recognized that the Berrys' trust was part of their estate planning, he agreed he appeared on behalf of David in a contemporaneous proceeding for the purpose of challenging part of that trust. The record clearly shows the trust was used to provide funds for the daily needs and wants of the wards, and that Baker and Wyers knew that a guardianship "had been filed" and had directed a $15,000 payment of the Wards' funds to themselves with the assistance of the Berryhills without permission of the special guardian or the guardianship court. The record clearly shows Baker was aware that payments were being made by Anita Berryhill from her own funds for the Berrys, including the $5,000 retainer paid to Baker; further, that he knew that the $5,000 payment was for representing two wards in a guardianship. ¶53 In a guardianship proceeding the procedure for payment of compensation to attorneys, guardians ad litem, and persons conducting evaluations is provided by a statute,30 O.S.2011 § 4-403.30 Section 4-403(C) states that attorney's fees for representing a ward should be approved by a court prior to payment. We have recently noted this principle when we explained that guardianship court approval may be sought of a contingency fee contract after execution of the contract.31 ¶54 Instead of seeking payment of attorney's fees through the guardianship court, Baker first accepted a $5,000 retainer from Anita Berryhill, and we assume that Baker's knowledge of guardianship law was sufficient for him to know that Anita Berryhill could seek restitution for payments she made on behalf of the wards from funds belonging to the wards that were subject to the guardianship jurisdiction of the District Court. Wyers accompanied or met the Berryhills and the wards at a financial institution and directed that an additional $15,000 retainer be paid to him for the representation provided by Baker and Wyers. The testimony is that the $15,000 was paid from the wards' funds that the Berryhillls were trying to keep from being controlled by the special guardian; that is, the Berryhills were admittedly trying to keep the funds from the supervision provided by a guardianship court, and giving themselves supervision over those funds. Baker and Wyers, knowing that a guardianship proceeding was pending, sought and obtained $20,000 as a retainer through checks written by the Berryhills without seeking court approval. ¶55 In addition to the financial relationship Baker and Wyers had with the Berryhills, we note that testimony revealed that as the guardianship progressed the wards' views of the guardianship changed from being antagonistic to being completely compliant with the relief requested by the Berryhills in their application. Baker and Wyers executed a contract to represent the Berrys, who said they did not want a guardianship, and three weeks later Baker and Wyers filed an application on behalf of the Berryhills to be named guardians for the Berrys. A ward may certainly change his or her mind in a three-week period. However, the trial court's findings state that Daughtrey, in particular, was easily led and influenced in her views, and that this observation of the trial court agreed with Daughtrey's assessment by Dr. Bianco. Further, the trial court observed that Baker & Wyers' communications concerning events such as the Berrys' appearance at court was through the Berryhills. The evidence was conflicting whether the Berryhills were present when Baker and Wyers were communicating with the Berrys. Baker testified they were not present. Daughtrey testified they were present, and the record shows that they were present when the retainers were paid. ¶56 Baker and Wyers also represented David Berry in a proceeding he commenced in the District Court of Tulsa County. David's application was signed by Baker. O.R. at 156, 168. The application sought to vacate an amendment to Foster Berrys' trust, and for a restraining order against the guardian, the Berry's daughter, the firm of Riseling and Rhodes, the Berrys' financial advisor of eighteen years, and the Edward Jones Trust Company. The application sought an order restraining the defendants named therein "from any involvement in the financial planning of Grantor [Foster Berry] or have any contact with any person involved in the care of the Grantor." O.R. at 165. The application sought an order restraining the defendants "from any action affecting the maintenance or administration of [Foster's trust]". O.R. at 167. In addition, while the title of the application states that it seeks for an adjudication that Foster Berry is not incapacitated, the specific requests for relief ask for an order that the "Second Amended Trust be suspended pending a determination of the capacity of Grantor [Foster] at the time of signing...." O.R. at 164.32 The appellate record shows that three months after the application was filed, attorneys Baker and Wyers appeared for David Berry at hearing on the Guardian's motion to dismiss David's application.33 ¶57 A separate proceeding was instituted by David concerning Daughtrey's trust. O.R. at 218. The application lists Baker as counsel but it is not signed by Baker. The docket entry for this proceeding shows a similar entry for Baker and Wyers attending the hearing on the motion to dismiss on behalf of David.34 The applications in both proceedings argue that the Berrys' trusts had historically made provisions for disbursements to their children and grandchildren; but the Second Amendment to them changed the timing for disbursements to their son and grandchildren and changed the daughter's share to an immediate disbursement. The Second Amendment also allegedly changed the corporate trustee. David alleged that the Second Amendment to the trusts was created by "the apparent conspiracy of Care [Steve Care, stockbroker and financial advisor to the Berrys], Peggy [Berrys' daughter, Peggy Jan Harris], and the law firm [Riseling and Rhodes] in drafting a Second Amendment which Grantor would never knowingly agree to." O.R. at 165. He alleged that "On August 17, 2011, Care appeared at the home of the Grantor with Jeff K. Rhodes (hereinafter 'Rhodes'), requesting Grantor to sign some new documents to make minor modifications to his [Foster's] Trust, execute a new Durable Power of Attorney and Nomination of Guardian, and possibly other documents including new Wills." O.R. at 159. He claimed that these actions were improper. David claimed he had a financial interest in his parents' trusts and that his sister should not receive her share in the manner specified in the Second Amendment. ¶58 Both applications filed by David challenging the amendments to the two trusts state that they are filed on behalf of himself and the Grantors of each of the trusts, Foster and Daughtrey. The applications by David do not specify in what legal capacity he is acting on behalf of his parents. ¶59 The appellate record contains an Entry of Appearance filed by David in his parents' guardianship proceeding. The entry is filed a month after he filed his two proceedings challenging the trusts and 2 months prior to the date that the trial court dismissed his actions. The entry of appearance is signed by Baker and states "by and through his legal counsel Clifton Baker and Steven Wyers, attorney at law, . . . Movant requests that all further and future correspondence or pleadings be directed to his attention through counsel at the address or telephone number listed below." O.R. at 281. The address and telephone of Baker and Wyers are listed on the appearance. ¶60 In the joint brief filed by both nominated counsel and counsel for the Berryhills in this Court, instead of focusing on the findings of the trial court used to show a conflict and a lack of independence, their legal argument is simply that the Berrys had capacity to make a knowing choice and that "Further, there was no evidence of any conflict of interest between the nominated attorneys and the Berrys."35 ¶61 We reverse a guardianship order only if it is clearly against the weight of the evidence or contrary to law.36 Generally, a conflict arises when a lawyer purports to represent two clients when a legal interest of one is contra to the other in the same litigation or other proceeding before the tribunal.37 The filings in the District Court record and the testimony are sufficient to show that Baker and Wyers represented interests contrary to the Wards. A conflict of interest and a lack of independence is shown by Baker and Wyers accepting a retainer from the Berryhills and directing an additional payment to themselves from the Berrys' funds via the Berryhills without first obtaining permission from the court and simultaneously representing the Berryhills while they were seeking to obtain a guardianship over the Berrys just three weeks after agreeing to represent the Berrys and challenge that guardianship, and communicating with the Berrys as clients through the Berryhills. The trial court testimony is sufficient to affirm the trial court's order that the Berryhills were present in meetings when Baker and Wyers gave legal advice to the Berrys and concluded that Daughtrey relied on others for what she should say and do, including Baker and the Berryhills. Baker and Wyers also represented David in challenges to his parents' trusts while also purportedly representing his parents in the guardianship. Baker testified that he could not represent the Berrys in matters concerning estate planning, but he and Wyers represented David in two legal proceedings challenging the Berrys' trusts while simultaneously representing the Berrys in the guardianship proceeding. ¶62 That portion of the order of the District Court which removed retained counsel, Clifton Baker and Steven C. Wyers, as counsel for Foster and Daughtrey for a lack of independence and for a conflict of interest is affirmed. IV. Remaining Claims in Nos. 111,492 and 111,961. ¶63 In Okla. Sup. Court No. 111,961 the Berryhills brought an original action seeking "emergency relief" by mandamus to compel (1) the guardian "to submit a proper report and accounting;" (2) the trial court to hold "a proper guardianship hearing;" and (3) the trial court to remove guardian Mansfield, and to dismiss the agent of guardian Mansfield, and to remove its protective order which restricted access to the Berrys by their relatives. The request for "emergency relief" was filed in this Court in July 2013 complaining of Judge Glassco's order filed in September 2011, and certain conditions of the guardianship that allegedly resulted from this order and subsequent proceedings in the trial court. ¶64 In Okla. Sup. Court No. 111,492, the Berryhills and nominated counsel jointly objected to restrictions imposed by the trial court's order with respect to visitations from family, and argue that the guardian improperly delegated powers of a guardian to the health care manager, and that the health care manager impermissibly profited from her initial mental assessment of the Berrys. The trial court held a hearing on the Berryhills' claim of being denied visitation and contact, and David Berry was one of the witnesses at this hearing. In the interest of judicial economy we combine the visitation/contact claims in No. 111,492 with those in No. 111,961, and assume original jurisdiction on these claims to the extent specified herein. ¶65 On the claim that the guardian had impermissibly shifted responsibility of making decisions to his agent, the healthcare manager for the Berrys, Susan Boyd, her testimony was that she notified the guardian concerning all visitation requests and she did not make any decisions on her own concerning the Berrys. She did testify that she employed others to provide healthcare for the Berrys. ¶66 There is no doubt that Boyd described herself as "agent for the guardian,"38 and the Berryhills argue that this improper agency is demonstrated by a letter Mansfield provided to Boyd.39 The letter states that the nursing service identified therein has authority to obtain information concerning the Berrys and that the management company (Susan Boyd and her employees) has full authority to be in the home of the Berrys, confer with treating therapists, treating physicians and staff members pertaining to the diagnosis, prognosis, and treating program for the Berrys. The letter also states that anyone may communicate to the guardian "any and all issues pertaining to the Berrys" through Select Life Management [Susan's Boyd's company]. The letter ends with "Select Life Management has the authority to do every act that I can as Guardian." While the Berryhills' principal complaint against Boyd is that she "made it increasingly hard to understand the hierarchy of this guardian-agent-healthcare worker(s) web, making it virtually impossible for Appellants to obtain permission to visit with the Wards,"40 and we agree that a guardian may not unilaterally transfer or assign the guardian's powers and responsibilities to another,41 there is no evidence before us of Boyd using the letter in exercising a guardianship power. The issue whether Mansfield could have provided a letter with more restrictive language for Select Life Management to use when providing nursing and health services and obtaining medical records is not before us. The evidence is sufficient to show that the trial court did not abuse its discretion in declining to remove Select Life Management. ¶67 The argument that Select Life Management improperly profited from Boyd's initial assessment is not well developed and contains no authority.42 The Berryhills and nominated counsel claim that someone who performs a mental evaluation on another should not profit from that evaluation by being hired to care for that person as a result of the examination; in sum, that Boyd and her company should not be selected to provide care to the Berrys since Boyd performed the initial evaluation. As we have previously observed, Dr. Bianco did not base his opinion concerning the Berrys on the preliminary evaluation performed by Boyd, and the record before us does not show how Boyd has a conflicting interest now that the Berrys have received an independent evaluation.43 The original proceedings herein were all brought after Dr. Bianco's assessment. We do not find an abuse of discretion on the part of the trial judge in declining to remove Boyd after Dr. Bianco's assessment.44 We must observe that three weeks after the creation of the special guardianship both the Berryhills and nominated counsel were seeking to impose a guardianship on the Berrys which included supplying the Berrys with nursing care. We conclude that this argument by the Berryhills and nominated counsel in this case is without merit. ¶68 The trial court held a hearing six days after the Berryhills filed their motion in the trial court to vacate the guardian's report, to lift the visitation and telephone restrictions, and remove the guardian and the guardian's agent. David Berry, James Berryhill, and Susan Boyd, the health care manager and agent for the guardian testified. The trial court granted the Berryhills' motion to vacate the annual report and accounting. Because the trial court vacated its order approving the guardian's accounting, a review of that portion of the order and the accounting itself is not properly before us in No. 111,961 for extraordinary writ review.45 ¶69 David Berry testified he must contact his parents' health care manager, or "agent for Guardian," Susan Boyd, when he wants to visit his parents. He testified that she checks with the guardian, Mansfield, "to make certain that I can get a visitation in." He stated he is allowed to visit "[n]ormally anytime I've contacted the agent of the guardian, Susan Boyd." He also testified his visits are supervised and he is limited to two hours. He stated health care workers are present and that they take notes of his visit. He testified he is not allowed to take his parents outside the home, and he is not allowed to spend a night in the home. He testified he heard a "click"upon conclusion of his telephone calls to his parents and concluded they were being heard and monitored by the caregivers. He also testified he made phone calls to his parents when he could have sounded inebriated. The Guardian stipulated that David Berry's "input is not taken into account when considering a plan for care of the wards." Tr. June 24, at 12. ¶70 James Berryhill testified that when he wanted to visit the Berrys he has to go through his counsel who then notifies either Susan Boyd or the guardian. He testified his visits are restricted to either 8 or 9 AM to 5 PM, Monday through Friday. He testified his visits are restricted to an one and 1/2 hours, except for twice he was allowed a two-hour visit. He testified he is not allowed to telephone the Berrys except when permission has been granted by the guardian or the agent for the guardian. He testified Daughtrey called him twice. He also testified Daughtrey told him that she was able to call him after a healthcare worker had left the cordless phone with her after she finished a call with David or with her brother. He also stated he was denied an opportunity to take the Berrys to dinner. The guardian stipulated there was no agreement with the Berryhills for them to have less restrictive visitations with the Berrys. ¶71 The guardian stated that Mr. Berryhill is permitted to telephone the Berrys. The guardian then stated the following. If they [the Berrys] are asleep, they are not going to be woken up. If they don't want to talk to him, despite whet he thinks, they're not going to be disturbed to talk to him. If he [Foster] can't hear what Mr. Berryhill is saying on the phone, he being Foster, when he's listening to Mr. Berryhill talk and decides to hand the phone over to a healthcare worker, then they're not going to make him [Foster] take the phone back up. Tr. at 31. James Berryhill then stated "That isn't the situation." He then testified that his telephone calls are being blocked and that it was "not emotionally healthy" for the Berrys because he has been in close communication with them for over 50 years. ¶72 Susan Boyd testified. She testified she oversees the Berrys' health. She attends all of their appointments with doctors. In a previous hearing she testified she is an R. N. and a member of, and certified by, the National Association of Professional Geriatric Care Managers.46 In the hearing on the Berryhills' emergency motion she testified she instructed the healthcare workers to follow the guardian's direction concerning telephone calls. "That they [the Berrys] are allowed to speak with the Berryhills any time they would like. They can call at their discretion, and if they want to talk to them, they can." Tr. at 37. She testified she does call the guardian and arrange for visitation with the Berrys. Then counsel for the Berryhills appears to have made an argument that "around the clock" healthcare workers would create an impermissible restriction on James Berryhill's and David Berry's desire to spend the night at the Berrys' residence and visit with the Berrys. Tr. at 38-39. ¶73 Boyd testified David Berry's phone calls and visitations have not been restricted. She testified that the Berrys may telephone whoever they want whenever they wish. Tr. at 40. She testified the Berryhills have contacted her concerning many visitations and that they had cancelled approximately 35-40% of the visitations. She testified that when the Berryhills email her concerning a visit she confirms there is a supervisor available, lets the guardian know of the request for a visit, and then the guardian confirms the request. The supervisor who is present is a nurse. She testified the director of nursing at Senior Select, a nursing agency, decided that a supervising nurse was necessary during visits from the Berryhills because visits by the Berryhills had "agitated the Wards" when the Berryhills would discuss the topics of the guardianship, other relatives, and money. Tr. at 47 - 48. She testified the nurse sent by the nursing agency for the Berryhills' visits is one who is more experienced in handling conflict situations. Tr. at 51. She testified the nursing agency sent the nurses with permission of the guardian. ¶74 Counsel for the Berryhills then made an offer of proof for portions of a deposition he desired to enter into evidence. The deposition of the healthcare worker is that there is no "healthcare plan in place . . . no cognitive plan in place" for the Berrys that the healthcare worker was aware of. Counsel for the Berryhills then rested. Counsel argued that supervised visitation was not proper and "we ask the court to recognize that this constitutes an emergency and that some further direction be given to establish that Mr. Berryhill - that the Berrys are entitled not to have a healthcare worker taking notes of all their conversations and listening to their personal conversations with their loved ones. . . . [and] there's no need for an additional nurse supervisor to be there." Opposing counsel argued that the procedures in place were to protect the Berrys. ¶75 The court then explained: It is not my intention to curtail the Berrys unreasonably. It is my every intention to make sure that they have a peaceful, happy life, and that they are permitted to have serenity, that they are permitted to call whomever they choose, that they are permitted to visit, certainly, with their son as they choose to do so. I do think that if Mr. Berry has called - and I'm speaking of David Berry - if he has called when he's inebriated, it is appropriate for the call to be curtailed. Does that mean every time he calls? Absolutely not. I think it would likely be upsetting to his parents if they felt he was inebriated. They discussed some of that when we had our trial, or at least in the initial guardianship hearing that we had a long time ago. I haven't heard from the Senior Select director to know what precipitated the determination to be made for supervisors to be present other than what has been reported by Ms. Boyd as violations of the Judicial Order of Proper Conduct with regard to certain topics, I have not forgotten that the Berryhills removed a significant amount of money from a personal account belonging to the Berrys and placed it in her name, Anita Berryhill's name. . . . I think that is an appropriate restriction and I think it is an appropriate restriction to make sure the Wards are not being agitated. And it does concern me that the report is that every time there has been a visit with Mr. Berryhill - I don't know whether Mrs. Berryhill has also been present at the same time - that it has resulted in agitation to the Berrys. . . . I have not heard that there are restrictions on David Berry's access to his parents or theirs to him. I have not heard that there are restrictions with regard to the Berryhills' phone calls or their calls to the Berryhills other than when there have been reported times when the phone has had some difficulty, which I believe was in the annual report that there had been some difficulty because of the age of the home with the wiring for the telephone. . . . June 24, 2013, Tr. at 59 - 61 (material omitted). The trial judge also stated that she would not create a schedule to force the Berrys to telephone the Berryhills because the Berrys "should be permitted to choose whom they wish to call, whom they wish to see, whom they wish to visit with, and their wishes should be honored." Tr. at 61-62. The trial judge then stated that she was vacating the order which approved the guardian's accounting because an objection had been filed and a hearing on the objection had been scheduled. ¶76 The trial court ruled that the Berrys "should be permitted to choose whom they wish to call, whom they wish to see, whom they wish to visit with, and their wishes should be honored." The testimony was that the supervising nurse present during the visits from James Berryhill was there because of a medical decision based upon agitation routinely caused by the visits. There was no testimony to the contrary offered by the Berryhills. Indeed, it appears that the testimony at the hearing was newly-revealed information to the Berryhills that the decision for the presence of a supervising nurse had originated from the nursing service in response to the Berrys' agitation instead of a directive originally from the guardian or Boyd. The Berryhills offered no testimony from any healthcare worker in the Berrys' home that they had been directed by the guardian or Boyd to shield the Berrys from all phone calls to them from the Berryhills.47 ¶77 When prohibition or mandamus is used in those limited circumstances to control a trial court's exercise of discretion, the petitioner must show that the trial court exceeded its authority or discretion in the order that the party is challenging by an extraordinary writ.48 The two orders challenged in this proceeding, the Holley adjudication of January 18, 2013, and the order on the emergency motion, June 28, 2013, contain no restriction on the wards' rights concerning telephone calls; they are specifically allowed to telephone whomever they desire and take phone calls, when awake, from whomever they desire. The trial judge, recognizing the medical necessity for the wards to be able to rest undisturbed, and their right to refuse to talk to anyone who telephoned them, declined to require the Berrys to make telephone calls or take calls from others. ¶78 The supervised visitation of the Berryhills appears to have been created from medical necessity to combat agitation caused from their visitations and the previous contact between the Berrys and the Berryhills which resulted in the Berrys' funds being placed in Anita Berryhill's bank account. The trial court specifically mentioned the absence of testimony before her from members of the nursing staff who observed the agitation and the amelioration of that agitation by a supervising nurse when the Berryhills visited. She did have testimony from Boyd who received reports from the nursing service and the need for the presence of a supervising nurse during the Berryhills' visits. Again, we find no abuse of discretion on the part of the trial court in adjudicating the Berryhills' emergency motion that would warrant extraordinary relief by mandamus or prohibition. ¶79 The Berryhills and nominated counsel argue that the protective order issued by Judge Otey should be set aside and the Berryhills be allowed to visit unsupervised. Judge Otey stated that her order was temporary to maintain the status quo until Judge Bitting could hear the matter. The restrictions on the visits by the Berryhills are present because of Judge Otey's order, but as a result of Judge Bitting's decision after hearing testimony. We decline to change the trial court's restrictions on the Berryhills' visits based upon their claims that the evidence was insufficient before Judge Otey for imposition of restrictions on visitation. ¶80 The Berryhills' claim to be named guardians is not before us in this proceeding. The nominations by Foster and Daughtrey were dated on October 21, 2011, and the nominations were attached to the petition filed in the District Court that same date by the Berryhills seeking a guardianship with Baker and Wyers as counsel for the Berryhills. The trial court record appears49 to show that parties agreed to an independent guardian being named, and Mansfield was named pursuant to that agreement. At a subsequent hearing, counsel for the Berryhills argued that the agreement for an independent guardian was only until the mental evaluations were completed. However, that was not how the trial judge remembered the proceeding resulting in Mansfield's appointment as guardian. ¶81 At the hearing of May 30, 2012, counsel for James and Anita Berryhill argued that a Holley hearing on nominated counsel should not be held because "we have no findings of incapacity" as to the Berrys. Tr. at 8. One counsel formerly representing the Berryhills stated that he did not "sign off" on the order appointing a general guardian and that the Berryhills' petition to be named guardians remained pending. The trial judge then informed counsel that at a previous hearing she had heard testimony and made an appointment of a general guardian based upon that testimony. She informed counsel that "if you do not like the determination that was made, of course, you have a right to appeal." Id. at 9. The trial judge and various counsel then had a discussion of what they remembered, specifically what they remembered concerning whether the petitions for guardianship by Jan and the Berryhills remained pending for future consideration after the appointment of Mansfield. The trial court then stated: Okay. All right. Well, if you all have motions that you would like to file properly bringing those issues before the Court, you may do so. We are not here on those issues today. May 30, 2012, Tr. at 21. The trial court instructed the parties to file a motion bringing their claims of pending petitions for guardianship before the judicial cognizance of the trial court to adjudicate. The clerk's docket shows an entry for a petition to remove guardian and for appointment of successor co-guardians filed on July 9, 2012, with an amended petition filed July 11, 2012. An answer was filed July 30, 2012, and a reply on August 17, 2012.50 Several hearings were held on the Holley issue and complaints by the Berryhills concerning the limits imposed on their visits with the Berrys. The trial court's decision on the Holley issue and the then pending requests for emergency relief was filed in January 2013. In June 2013, the Berryhills requested that Mansfield be removed as guardian but did not combine their claims relating to a pending petition for guardianship. ¶82 In their briefs filed in this Court in No. 111,492,51 the Berryhills and nominated counsel make no statements or argument concerning the petition and amended petition of July 2012 for a change in guardianship status. The briefs in No. 111,492, do not state that the trial court has declined to rule on the issue or to set a hearing on the issue. In the brief filed by the Berryhills and nominated counsel in No. 111,961, they assert that the guardian should be removed because he has not performed his duties faithfully.52 They do not refer to their petition and amended petition filed in 2012, any decision on that amended petition, any refusal by the trial court to act on that petition, or that counsel has made any effort to have the petition adjudicated. However, in No. 111,492 we are requested to remove the agent of the guardian as well as the guardian.53 The arguments in their brief state that Mansfield improperly delegated authority to Boyd, and that Boyd improperly obtained a profit from her initial determination that the wards were incapacitated.54 Whether the Berryhills' claim for guardianship was adjudicated, or waived, or remains pending in the trial court cannot be determined on the record before us and we decline to examine it in the context of the present appeal and requests for extraordinary relief. ¶83 Nominated counsel and the Berryhills argue that the evidence of the Berrys' mental capacities was absent or insufficient to authorize either a special guardianship in September 2011, or the subsequent order appointing a general guardian in October 2011 (filed Nov. 3, 2011).55 The first application to assume original jurisdiction herein was filed approximately 15 months after the order appointing a general guardian.56 A trial court's order is appealable when it determines that an individual is incapacitated and appoints a general guardian. 30 O.S.2011 § 3-106. In 1978, we held that an order which overrules a motion to vacate a previous order adjudicating the need for a guardianship is also an appealable order.57 There is nothing in the record before us which suggests that nominated counsel and the Berryhills either timely appealed the order appointing a general guardian or subsequently filed in the trial court a motion to vacate the order appointing the general guardian. ¶84 As noted herein, the trial judge stated that she heard from Daughtrey at the hearing which resulted in the appointment of a general guardian. This challenge by nominated attorneys and the Berryhills appears to raise the general issues of (1) the required nature of evidence necessary at a hearing that adjudicates incapacity and appoints either a special or general guardian, (2) whether the nature of this evidence is in any way dependent upon the nature of the incapacity which is alleged, and (3) whether the evidence must be preserved in the trial court record by, for example, a transcript with exhibits, even if no party requested58 a stenographic record. For example, their challenge argues that no evidence was presented sufficient to appoint a general guardian and the journal entry signed by the judge states that appointment of a guardian was based upon testimony from Daughtrey. Their challenge also raises the specific issue whether the assessment by Dr. Bianco was proper. ¶85 Again, at a hearing held in May of 2012, the trial judge, on the record, specifically requested that the parties file motions raising whatever issues counsel believed remained pending and needed an adjudication. Absent exigent and unusual circumstances, in the context of an original supervisory writ this Court does not make first-instance assessments in applying legal principles to facts, but allows the parties to develop issues of fact and law in the trial court.59 Between June of 2012 and February 2013 when the proceeding was filed in this Court, nominated counsel and the Berryhills made litigation decisions with respect to what claims they would present by motion in the trial court. Generally, if a lawyer (1) fails to file an appeal of an appealable order, and (2) then fails to file a motion to vacate challenging that order, and (3) continues to actively litigate other issues in the trial court for several months, and then (4) upon filing an extraordinary writ proceeding in this Court raises an issue which should have been the subject of a prior appeal or motion to vacate, then the lack of an apparent need for a quick adjudication in the trial court as shown by counsel's litigation strategy in that court will be one factor considered as showing a lack of an exigent need to address a first-instance adjudication in this Court. We decline to address this claim prior to an adjudication of the claim in the trial court. V. Okla. Sup. Ct. No. 112,573 ¶86 In No. 112,753, the Berryhills and David Berry seek an extraordinary writ to review an order of the trial court which quashed their subpoenas duces tecum that were issued to "various banking and financial institutions, including subpoenas related to the Ward's trust accounts."60 The trial court's order stated that it did not have jurisdiction and relied upon our recent opinion in Russell v. Chase Inv. Servs. Corp., 2009 OK 22, 212 P.3d 1178. We assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4, to clarify the issue. We grant prohibition to prevent enforcement of the trial court's order quashing the subpoenas, and explaining that the subpoenas should not be enforced until the trial court holds a hearing on the motion to quash that adjudicates the issues raised by the motion. ¶87 In Russell, we explained that the guardianship statutes must be construed to accommodate a durable power of attorney, and a guardianship does not automatically terminate a durable power of attorney.61 We noted that a durable power of attorney may be revoked by a court-appointed fiduciary and, if not revoked, a durable power of attorney may exist "within a general guardianship."62 We also explained that "there is nothing in the Guardianship Act which prevents the guardian from utilizing the attorney-in-fact, who is accountable to the guardian for her actions, in carrying out the guardian's duties. . . . [and the relevant statutes] 'allow the attorney-in-fact to continue to manage the principal's financial affairs, while the court-appointed fiduciary would take the place of the principal in overseeing the actions of the attorney-in-fact.'"63 A guardian exercises power over a person exercising a durable power of attorney as we explained in Russell: A year after the guardian's appointment, every year thereafter, and upon court order, the guardian of the property is required by statute to file a report, which shall contain a complete financial statement of the ward's financial resources over which the guardian has control or supervision and "an accounting of any receipts and disbursements received, or expenditures made" on the ward's behalf. 30 O.S.2001, §§ 4-303(A), 4-306(E). Since the attorney-in-fact is accountable to the guardian, and all of the ward's property is a part of a general guardianship of the property over which the guardian has control or supervision, the annual report will reflect transactions involving the ward's property made by the attorney-in-fact, as well as the guardian. See id. § 4-306(E). The court exercises its jurisdiction to determine "how the estate of the ward shall be managed, expended, or distributed" not by issuing specific orders for day-to-day expenditures but by exercising control through its approval or disapproval the guardian's reports. See id. § 1-114. Russell, 2009 OK 22, ¶ 18, 212 P.3d at 1184 (note omitted). By statute, a report of the guardian "shall contain a complete financial statement of the financial resources of the ward under the control and supervision of the guardian or limited guardian . . . [and] shall contain an accounting of any receipts and disbursements received, or expenditures made by the guardian . . . on behalf of the ward." 30 O.S.2011 § 4-306(E)(1) and (2) (material omitted). A guardianship court exercises jurisdiction over the attorney-in-fact by a guardian submitting the required financial information and this financial information includes expenditures made by an attorney-in-fact under the guardian's supervision. ¶88 The Berryhills and David Berry assert that the guardian has not filed the required financial information and no report has been filed showing any expenditures from Daughtrey's trust, although all of her living expenses are to be paid from the trust. The confidentiality of every trust provision is not negated by a guardian's duty to file a financial report. However, a guardian may not decline to account for expenditures made on behalf of the ward by a trustee. Both the financial resources of the ward and expenses of the ward must be reported in a guardian's report. 30 O.S.2011 § 4-306(E)(1) & (2). ¶89 Discovery promotes the ascertainment of the truth and ultimate disposition of a legal proceeding,64 but the right to discovery occurs in the context of orderly procedure within the framework of litigable interests. When a proper party in a guardianship alleges that a guardian has failed to file an accounting of financial resources and expenditures as required by statute, that party is entitled to discovery to have an opportunity to be heard in a meaningful manner.65 Generally, a "party" to a guardianship means "the person or entity filing the petition, application, motion, acceptance of a testamentary nomination, or objection; the subject of a guardianship proceeding; and the guardian, the guardian ad litem and the conservator, if any such persons have been appointed; . . . ." 30 O.S.2011 § 1-111(23). Party status, as such relates to a guardian's report, also includes those who are statutorily specified to receive that report. Copies of a guardian's report on an adult ward are served on the ward, spouse of the ward, adult children of the ward, and others designated by the court.66 These parties may file an objection to a Guardian's report.67 A guardianship court possesses jurisdiction to issue a subpoena duces tecum to a trustee of a ward expending funds on behalf of that ward when those expenditures are statutorily required to be in a guardian's report. ¶90 The record before us shows an objection to certain individuals having access to financial information from the ward's trust. Parties in a guardianship, including those who are given the statutory right to object to a guardian's report, have a right to engage in discovery to be afforded an opportunity for a full and fair adjudication of their objection to a guardian's report. Generally, we have explained that a party objecting to discovery must file an objection to the discovery and seek protection from the discovery request.68 Upon a party filing an objection to discovery and asserting that certain individuals are not entitled to financial information of a ward, the trial court must adjudicate that objection and determine if the individuals are proper parties in the guardianship proceeding and if the objection to the discovery is a valid. VI. Conclusion ¶91 We affirm that part of the trial court's order which held the nominated firm of Baker and Wyers to have a conflict and to be not independent. We assume original jurisdiction on the other claims, and decline to issue writs of mandamus and prohibition with the sole exception of the trial court quashing subpoenas. ¶92 We issue prohibition with directions to the trial court to hold a hearing on the motion to quash the subpoenas and determine whether the information is being sought by a proper party to the guardianship and whether an objection to discovery is proper pursuant to the Discovery Code or some other provision of law. We hold that a guardianship court possesses jurisdiction to issue a subpoena duces tecum to a trustee of a ward expending funds on behalf of that ward when those expenditures are statutorily required to be in a guardian's report, and those seeking the information are statutorily authorized to object to the guardian's report. ¶93 ALL JUSTICES CONCUR. FOOTNOTES 1 We have adjudicated cause Okla. Sup. Ct. No. 112,573, as part of the Court's Opinion that also adjudicates No. 111,492 which is consolidated with No. 111,961. Cause No. 111,492, is an appeal after the Court's recasting and the requests for issuance of writs in No. 111,961 were made part of that appeal by the consolidation of the proceedings by prior order of this Court. A mandate encompassing both No. 111,492 and 111,961 will issue in accordance with the Rules of this Court. By prior order of the Court, Cause No. 112,573, is a companion case and an exercise of original jurisdiction, and it is not part of the mandate in consolidated proceeding Nos. 111,492,/111,961. One consequence of this procedure is that the Court's opinion as to No. 112,573 may be enforced when filed with the Clerk of this Court and the consolidated appellate proceeding may be enforced upon issuance of the mandate. See Okla. Sup. Ct. R. 1.16, 1.193; Chronic Pain Associates, Inc. v. Bubenik, 1994 OK 127, 885 P.2d 1358, 1364 ("In all original proceedings, other than those to review a decision of the Workers' Compensation Court or to impose bar discipline, the decision of this Court shall become effective when the opinion or order is filed with the Clerk of this Court, unless this Court stays the effective date."); Daniel v. Daniel, 2001 OK 117, ¶ 12, 42 P.3d 863, 868-869 ("The mandate from the Supreme Court is an order requiring the lower tribunal to comply with an appellate opinion, and it carries with it the authority for the trial court to proceed."). 2 According to a Suggestion of Death filed in this Court, Foster Calvin Barry died during the pendency of this proceeding. 3 Judge Millie Otey ordered that the estate planning documents including powers of attorney, trust documents, and wills submitted to the court be under seal, Oct. 11, 2011. 4 Both the singular "trust" and plural "trusts" are used throughout this opinion because the parties at times would refer to the separate trust for Foster and the separate trust for Daughtrey as "the trust" when referring to both, and at various times the parties distinguish between the two trusts and refer to them separately. The opinion follows their lead and distinguishes them when the parties have appeared to make the distinction. 5 The written form of the decision recorded with the trial court clerk also involves a jurisdictional requirement for commencing an appeal. For example, appealability based upon the form of an order may be found at 12 O.S.2011 § 696.2 (D): "... The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequiste to the commencement of an appeal." See also 12 O.S. 2011 § 990A(A) (stating a thirty-day jurisdictional requirement for commencing an appeal and referencing 12 O.S. §§ 696.2, 696.3). 6 Conterez v. O'Donnell, 2002 OK 67, ¶ 11, 58 P.3d 759, 763. 7 See 12 O.S.2011 § 952 (b)(1) at note 8 infra. A final order is "An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article." 12 O.S.2011 § 953. 8 12 O.S.2011 § 952: (a) The Supreme Court may reverse, vacate or modify judgments of the district court for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: 1. A final order; 2. An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment; 3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal. If the Supreme Court assumes jurisdiction of the appeal, it shall indicate in its order whether the action in the trial court shall be stayed or shall continue. The failure of a party to appeal from an order that is appealable under either subdivision 2 or 3 of subsection (b) of this section shall not preclude him from asserting error in the order after the judgment or final order is rendered. 9 12 O.S.2011 § 993 (as amended Laws 2013, 1st Ex.Sess., c. 10, §§ 2, 3 (eff.Sept.10, 2013.): A. When an order: 1. Discharges, vacates, or modifies or refuses to discharge, vacate, or modify an attachment; 2. Denies a temporary or permanent injunction, grants a temporary or permanent injunction except where granted at an ex parte hearing, or discharges, vacates, or modifies or refuses to discharge, vacate, or modify a temporary or permanent injunction; 3. Discharges, vacates, or modifies or refuses to discharge, vacate, or modify a provisional remedy which affects the substantial rights of a party; 4. Appoints a receiver except where the receiver was appointed at an ex parte hearing, refuses to appoint a receiver, or vacates or refuses to vacate the appointment of a receiver; 5. Directs the payment of money pendente lite except where granted at an ex parte hearing, refuses to direct the payment of money pendente lite, or vacates or refuses to vacate an order directing the payment of money pendente lite; 6. Certifies or refuses to certify an action to be maintained as a class action; 7. Denies a motion in a class action asserting lack of jurisdiction because an agency of this state has exclusive or primary jurisdiction of the action or a part of the action, or asserting that a party has failed to exhaust administrative remedies, but only if the class is subsequently certified and only as part of the appeal of the order certifying the class action; or 8. Grants a new trial or opens or vacates a judgment or order, the party aggrieved thereby may appeal the order to the Supreme Court without awaiting the final determination in said cause, by filing the petition in error and the record on appeal with the Supreme Court within thirty (30) days after the order prepared in conformance with Section 696.3 of this title, is filed with the court clerk. If the appellant did not prepare the order, and Section 696.2 of this title required a copy of the order to be mailed to the appellant, and the court records do not reflect the mailing of a copy of the order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the order was mailed to the appellant. The Supreme Court may extend the time for filing the record upon good cause shown. B. If the order discharges or modifies an attachment or temporary injunction and it becomes operative, the undertaking given upon the allowance of an attachment or temporary injunction shall stay the enforcement of said order and remain in full force until final order of discharge shall take effect. C. If a receiver shall be or has been appointed, upon the appellant filing an appeal bond, with sufficient sureties, in such sum as may have been required of the receiver by the court or a judge thereof, conditioned for the due prosecution of the appeal and the payment of all costs or damages that may accrue to the state or any officer or person by reason thereof, the authority of the receiver shall be suspended until the final determination of the appeal, and if the receiver has taken possession of any property, real or personal, it shall be returned and surrendered to the appellant upon the filing and approval of the bonds. 10 See 12 O.S.2011 § 952, supra, at n. 8. 11 See 12 O.S.2011 § 952(a) ("The Supreme Court may reverse, vacate or modify judgments of the district court for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof.") (emphasis added); State v. One Thousand Two Hundred Sixty-seven Dollars, 2006 OK 15, ¶ 17, 131 P.3d 116, 123 ("An aggrieved party may secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision. This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a).") (notes omitted). 12 30 O.S.2011 § 3-106 (A)(6): "A. In all hearings conducted pursuant to Article III of the Oklahoma Guardianship and Conservatorship Act, an individual who is alleged to be or found to be an incapacitated or partially incapacitated person shall have a right to: . . . 6. appeal adverse orders and judgments as provided by the rules of civil procedure;. . . ." 13 58 O.S.2011 § 721: An appeal may be taken from the following judgments or orders of the district court: 1. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship, or conservatorship; 2. Admitting, or refusing to admit, a will to probate; 3. Against or in favor of the validity of a will or revoking the probate thereof; 4. Against or in favor of setting apart property, or making an allowance for a widow or child; 5. Against or in favor of directing the partition, sale or conveyance of real property; 6. Settling an account of an executor, or administrator or guardian; 7. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share; 8. Refusing or allowing the release of estate tax liability; 9. An order determining liability for estate taxes made pursuant to Section 268 of this title; or 10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right. 14 County Courts exercised "probate jurisdiction" or jurisdiction in "probate matters" prior to the reorganization of Oklahoma courts in 1969. In re Guardianship of Stanfield, 2012 OK 8, 276 P.3d 989, 998; Wilson v. Kane, 1993 OK 65, 852 P.2d 717, 720-721. The phrase "probate cause" was often linked to the specific case number on the docket of a county court exercising its probate jurisdiction in a guardianship. Harrison v. Orwig, 1931 OK 244, 299 P. 143, 146; Steil v. Marshall, 1928 OK 321, 267 P.2d 268, 268-269. Cf. Reynolds v. Brock, 1926 OK 3, 250 P. 999, 1000 (when adjudicating the issue whether a guardianship could be transferred between two county courts and after discussing the jurisdiction of county courts in "probate matters," the Court explained that on county court had not acquired jurisdiction "of this probate proceeding"). The probate jurisdiction exercised in a probate cause in a county court statutorily included a guardianship proceeding which became part of the probate jurisdiction of a district court. See, e.g., 58 O.S.1961 § 1 (2); 58 O.S.2011 § 1 (A) (2). 15 1938 OK 424, 81 P.2d 488. 16 Towne, 1999 OK 10, at ¶ 3; State ex rel. Reirdon, 81 P.2d at 490-491. 17 Towne, 1999 OK 10, at ¶ 4, ("the January 5, 1999 guardianship order . . . constitutes an appealable interlocutory guardianship decision"); Towne v. Hubbard, 2000 OK 30, ¶ 0, 3 P.3d 154, 156 ("This court recast the quest for a prerogative writ into a timely appeal from an interlocutory order in guardianship."). 18 In the Matter of the Guardianship of Holly, 2007 OK 53, ¶¶ 16, 20-23, 164 P.3d 137, 143-144. See also Towne v. Hubbard, 2000 OK 30 ¶ 11, 3 P.3d 154, 158 ("This court recast the quest for a prerogative writ into a timely appeal from an interlocutory order in guardianship and sua sponte retained the cause for disposition."). 19 The thirtieth day was Sunday, February 17, 2013, which was followed on February 18, 2013, Presidents' Day, a legal holiday. 25 O.S.2011 § 82.1(A). The timely filing of a petition in error on a Sunday or on one of the specific holidays listed in § 82.1(A) may be performed on the next succeeding business day. See 25 O.S. § 82.1(C) ("Any act authorized, required, or permitted to be performed on a holiday as designated in subsection A of this section may be performed on the next succeeding business day, and no liability or loss of rights of any kind shall result from such delay."). See 12 O.S.2011 § 990A(A) which states in part that: "A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court." 20 2002 OK 67, 58 P.3d 759. 21 State v. One Thousand Two Hundred Sixty-seven Dollars, 2006 OK 15, ¶ 17, 131 P.3d 116, 123 ("An aggrieved party may secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision. This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a).") (notes omitted). 22 Martin v. Johnson, 1998 OK 127, ¶ 18, 975 P.2d 889, 893-894 (An intermediate or interlocutory order anterior to judgment may be reviewed on appeal from the judgment.); LCR, Inc. v. Linwood Properties, 1996 OK 73, at n. 19, 918 P.2d 1388, 1393 ("Prejudgment orders, which affect other intermediate orders, may, of course, be reviewed after judgment under the standard of abused discretion."). Cf. Liberty Bank and Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836, 839 (a party's right to seek appellate review of a judgment yet to be made, and those interlocutory adjudications preceding it, are not prejudiced by the Court's dismissal of a premature appeal for lack of an appealable judgment). 23 Whig Syndicate, Inc. v. Keyes, 1992 OK 95, 836 P.2d 1283, 1285-1286. 24 Whig Syndicate, 836 P.2d at 1286. See also Okla. Sup. Ct. R. 1.60 ("Orders of the district court that are interlocutory and may be appealed by right in compliance with the rules in this part are those that: ". . . (g) Certify or refuse to certify an action to be maintained as a class action . . . ."). 25 Whig Syndicate, 836 P.2d at 1286, 1289, emphasis added. 26 In re Guardianship of Holly, 2007 OK 53, ¶ 22, 164 P.3d 137, 143, explaining In re Towne, 2000 OK 30, 3 P.3d 154. 27 Miami Business Services, L.L.C. v. Davis, 2013 OK 20, ¶ 11, 299 P.3d 477, 483. 28 Miami Business Services, L.L.C. v. Davis, 2013 OK 20, ¶ 12, 299 P.3d at 484. 29 We have previously observed in the context of a guardianship proceeding that in addition to a party raising the issue of a lawyer's conflict and independence with his or her client "a statute directs the court to consider the matter." Towne, 2000 OK 30, ¶ 15, 3 P.3d at 161. 30 30 O.S.2011 § 4-403: A. 1. An attorney, other than a public defender, for a ward or a subject of a proceeding pursuant to the Oklahoma Guardianship and Conservatorship Act or whose services are obtained by a guardian on behalf of a ward is entitled to reasonable compensation to be paid from and as a charge against the estate of the ward. Reasonable compensation for attorney services rendered and expenses made on behalf of the guardian of the ward incurred prior to the appointment of the guardian may be paid from and charged against the estate of the ward, as approved by the court prior to payment. 2. Guardians ad litem, other than an employee of a public agency or an employee of a private agency which provides such service pursuant to a contract with a public agency, appointed pursuant to the provisions of this act are entitled to reasonable compensation. 3. A person conducting an evaluation of the subject of the proceeding, whose services resulted in the appointment of a limited guardian or guardian or other order beneficial to the subject of the proceeding, is entitled to reasonable and necessary compensation. B. 1. Compensation and reimbursements pursuant to this section shall be paid from the financial resources of the subject of the proceeding unless the court determines that such payment of compensation and reimbursements would: a. substantially impede the partially incapacitated or incapacitated person from meeting the essential requirements for his physical health or safety, and b. substantially impair the financial resources of such person, or substantially impede his ability to obtain the services necessary for developing or regaining his abilities to the maximum extent possible. 2. If not otherwise compensated or reimbursed pursuant to the provisions of paragraph 1 of this subsection: a. any attorney or guardian ad litem appointed by the court who is entitled to compensation shall be compensated from the court fund of the court having jurisdiction, b. the cost of services provided by a person conducting an evaluation, when such person is the employee of a public agency or the employee of a private agency which provides such services for guardianship proceedings pursuant to an agreement with a public agency, shall be borne by the public agency, or by the private agency in accordance with the terms of such agreement, and c. if the person conducting an evaluation is a private individual or agency and the cost of the services provided is not otherwise compensable under a state or federal public assistance program, compensation for the cost of services shall be from the court fund of the court having jurisdiction. 3. Compensation or reimbursement from the court fund for attorneys and guardian ad litem pursuant to the provisions of this subsection shall be in accordance with the provisions of Section 1304 of Title 20 of the Oklahoma Statutes. C. All compensation and reimbursements pursuant to the provisions of this section shall be approved by the court prior to payment. D. Contingent fees and contracts for recovery of property agreed upon and approved by courts or the ranking official representing the Secretary of the Interior in Oklahoma, who has supervision of any restricted Indian tribe in this state do not come within the provisions of the Oklahoma Guardianship and Conservatorship Act. 31 In re Guardianship of Stanfield, 2012 OK 8, ¶22, 276 P.3d 989, 1000 ( "Paragraph 'C' [ 30 O.S. § 4-403] states that 'All compensation and reimbursements pursuant to the provisions of this section shall be approved by the court prior to payment.'"). 32 The original application of David concerning Foster's trust and filed in the District Court in No. PT-2011-51 is missing page number 5 of that document. O.R. at 159-160. The almost identical application concerning Daughtrey's trust filed in No. PT-2011-52 contains page number 5. O.R. at 232. 33 Vol. 5 of the record on appeal, docket entry for March 15, 2012, in No. PT-2011-51: "David Berry appears in person and by attorneys Cliff Baker and Steve Wyer." 34 Vol. 5 of the record on appeal, docket entry for March 15, 2012, in No. PT-2011-52: "David Berry appears in person and by attorneys Cliff Baker and Steve Wyer." 35 Brief in Support of Application to Assume Original Jurisdiction and Petition for Writ of Mandamus, No. 111,492, pp. 13-14, filed by both nominated counsel and counsel for the Berryhills. 36 In re Guardianship of Holly, 2007 OK 53, ¶ 19, 164 P.3d at 143. 37 Rules of Professional Conduct, 5 O.S.2011 Ch. 1, App. 3-A, Rule 1.7(b)(3). Conflict of interest: current clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. 38 July 11, 2012, Tr. at 5, line 16. 39 August 17, 2012, Tr. at 31, & Berryhill Exhibit 1. 40 Appellant's Brief in Chief, No. 111,492, filed April 15, 2013, at 22. 41 Ex parte Spurrier, 1925 OK 506, 238 P. 956, 960, quoting Kersey v. McDougal, 1920 OK 623, 191 P. 594 (Syllabus by the Court) ( "A guardian appointed by a court has power over the person and property of the ward unless otherwise ordered, and such power is suspended only by order of the Court, . . . ."). 42 Appellant's Brief in Chief, No. 111,492, April 15, 2013, at 24-25. 43 We characterize the evaluation as independent because the record before us contains no procedurally proper trial court challenge to the independence or merits of the evaluation that was pressed for adjudication in that court. Parties must raise their claims in the trial court within a proper procedural context for their adjudication before that court prior to pressing them in this court in the context of a review of the trial court's order adjudicating those claims, whether by appeal or a supervisory writ proceeding. This Court does not issue advisory opinions or answer hypothetical questions, and we do not make first-instance assessments applying legal principles to facts, but allow the parties to develop issues of fact and law in the District Court. Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232, 1239-1240. 44 We note that the issue whether a person performing a mental evaluation on another may have a conflict if that person is also selected to care for that person solely on the basis of that assessment is an issue that is not before us. 45 Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d at 1239-1240. We also note that David and the Berryhills raise a complaint concerning a guardian's report that is adjudicated in the companion proceeding herein, Okla. Sup. Ct. No. 112,573. 46 One New York court has noted that a "cottage industry" has grown up around the need for professional care supervision for older persons, especially persons with mental and physical disabilities and that many social workers and other health care professionals have been certified as geriatric care managers through a professional organization, the National Association of Professional Geriatric Care Managers. In re Mark C.H., 28 Misc.3d 765, 767, 906 N.Y.S.2d 419, 421 (N.Y.Sur. 2010). According to one group of authors, GCMs [Geriatric Care Managers] who are admitted to full (advanced) membership in the National Association of Professional Geriatric Care Managers have master's degrees in social work, nursing, human services, or gerontology. Lisa Stewart, et al., The Interdisciplinary Team Focus: A Strategy for Developing a Successful Practice of Elder Law, 19 Nova L.Rev. 647, 653 (1995). 47 In materials filed in No. 111,961 by the Berryhills: The partial deposition of S. Buchanan, a healthcare worker in the Berrys' home, contained no testimony on any directive concerning phone calls from the Berryhills. The partial deposition by R. Hall, also a healthcare worker, stated that a nurse calls the healthcare workers to let them know that a visit has been scheduled, but contains no discussion about monitoring phone calls from the Berryhills. 48 See, e.g., Heffron v. District Court Oklahoma County, 2003 OK 75, ¶ 3, 77 P.3d 1069, 1073 ("... before appropriate relief may be granted, it must be shown that the trial court exceeded its authority or discretion in ordering or denying pretrial discovery."). 49 The order appointing guardian states that "By agreement of the parties and their counsel, Christopher I. Mansfield is appointed General Guardian of the Person and Estate of the Wards." O.R. at 148. 50 See 1. Petition to Remove Guardian and for Appointment of Successor Co-Guardians, filed by James and Anita Berryhill, July 9, 2012 (O.R. at 354); 2. Amended Petition to Remove Guardian and For Appointment of Successor Co-Guardians, filed by James and Anita Berryhill, Jul 11, 2012 (O.R. at 371); 3. Answer to Amended Petition to Remove Guardian and For Appointment of Successor Co-Guardians and Alternative Cross-Claim for Appointment as General Guardian, filed by Peggy Jan Harris July 30, 2012 (O.R. at 381); 4. Reply to Answer to Amended Petition to Remove Guardian and for Appointment of Successor Co-Guardians and Answer to Alternative Cross-Claim for Appointment as General Guardian, filed by James and Anita Berryhill on August 17, 2012 (O.R. at 419). 51 Brief in Support of Application to Assume, etc., filed February 19, 2013, and "Appellant's [sic] Brief in Chief, April 15, 2013. 52 Brief in Support of Emergency Application to Assume Original Jurisdiction, July 9, 2013. 53 Appellant's Brief in Chief, No. 111,492, filed April 15, 2013, at p. 30. 54 This argument is not well developed by the Berryhills and nominated counsel and the argument contains no authority. Appellant's Brief in Chief, No. 111,492, April 15, 2013, at 24-25. They claim that someone who performs an evaluation on another should not profit from that evaluation, and that Boyd and her company should not be selected to provide care to the Berrys since Boyd performed an initial evaluation. As we have previously observed, Dr. Bianco did not base his opinion of the Berrys on the preliminary evaluation performed by Boyd, and the record before us does not show how Boyd has a conflicting interest now that the Berrys have received an independent evaluation. We do not find an abuse of discretion on the part of the trial judge in declining to remove Boyd after Dr. Bianco's examination. 55 Appellant's reply brief in No. 111,492, filed May 17, 2013, at 8-12. 56 The application to assume original jurisdiction and petition for writs of mandamus and prohibition were filed in No. 111, 492, in this Court on February 19, 2013. 57 Lebus v. Carden, 1978 OK 91, 583 P.2d 503. 58 At the request of any party to a proceeding pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act, the court shall order that a stenographic or mechanical record of the proceeding be made. 30 O.S.2011 § 3-106 (G). It appears that no counsel requested a stenographic or mechanical record of the proceeding be made. 59 State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, ¶ 44, 297 P.3d 378, 397. 60 Brief filed in No. 112,573, February 14, 2014, in support of assuming jurisdiction by the Berryhills and David Berry, at 1. 61 Russell, 2009 OK 22, ¶¶ 21, 24, 212 P.3d at 1185, 1186. 62 Russell, 2009 OK 22, ¶¶ 14, 16, 212 P.3d at 1183. 63 Russell, 2009 OK 22, ¶ 17, 212 P.3d at 1184. 64 Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 33, 87 P.3d 598, 606. 65 This Court has commented in various contexts on the important opportunity to engage in discovery so that a party may present a developed factual record to the trier of fact. State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 58, 264 P.3d 1197, 1219. 66 30 O.S.2011 § 3-110 states in part: The court shall cause notice to be served of the time and place of the hearing on the petition requesting the appointment of a guardian for an incapacitated or partially incapacitated person on: 1. the subject of the proceeding; and 2. the following persons, other than the petitioner, who are known to the petitioner or whose existence and address can be ascertained by the petitioner with reasonably diligent efforts: a. the spouse, if any, of the subject of the proceeding, b. the attorney, if any, of the subject of the proceeding, c. all adult children of the subject of the proceeding, d. if there is no such adult child, the then living parent or parents of the subject of the proceeding, or e. if there is no such parent, all adult brothers and sisters of the subject of the proceeding and all adult grandchildren of the subject of the proceeding; 3. in case no person listed in paragraph 2 of this subsection is given notice, notice shall be given to at least one and not more than three of the nearest adult relatives of the subject of the proceeding who are known to the petitioner or whose existence and address can be ascertained with reasonably diligent efforts; 4. if not the petitioner, any person or organization which, in the petition, is proposed to serve as guardian or limited guardian or, to the extent such nomination is known to the petitioner, who is nominated by will or other writing to serve as guardian or limited guardian; 5. to the extent known to the petitioner: a. the person or facility having care or custody of the subject of the proceeding, and b. the Department of Human Services or the Department of Mental Health and Substance Abuse Services, if said Departments are providing services to the subject of the proceeding; 6. as appropriate, the Veterans Administration pursuant to Section 126.8 of Title 72 of the Oklahoma Statutes; and 7. any other person as directed by the court. 67 30 O.S.2011 § 4-307 states in part: A. 1. Upon the filing of an annual report the court shall immediately cause a copy of the report to be mailed by first-class mail to: a. the persons entitled to notice pursuant to Section 2-101 of this title for minors, or b. those persons entitled to notice pursuant to paragraphs 1, 2, 3 and 7 of subsection A of Section 3-110 of this title for adults, and c. the attorney of the ward, if any. 2. Attached to the copy of the report shall be a statement notifying the person receiving copies of said reports that any objection to the report must be filed within fifteen (15) days after the date of the filing of the annual report with the court. 3. Any person entitled to receive a copy of the annual report may file an objection to said report within fifteen (15) days after the filing of the annual report with the court. 68 See, e.g., Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶ 16, 174 P.3d 996, 1004 ("The party or person from whom a deposition is sought may, with good cause to be shown, request a protective order to 'protect a party or person from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense....'"); Hall v. Goodwin, 1989 OK 88, n. 7, 775 P.2d 291, 295 ("The party objecting to discovery must raise the objection and has the burden of establishing the existence of the privilege."). We need not explain herein the basic procedures for a person or party seeking protection from discovery.

de26337e-3788-468a-9b6f-67093cb6a367

Oklahoma ex rel. Dept. of Transportaion v. Lamar Advertising of Oklahoma, Inc.

oklahoma

Oklahoma Supreme Court

STATE ex rel. DEPT. OF TRANSPORTATION v. LAMAR ADVERTISING OF OKLAHOMA, INC.2014 OK 47Case Number: 110896; Cons. w/111108Decided: 06/03/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. State of Oklahoma, ex rel. Department of Transportation, Appellant, v. Lamar Advertising of Oklahoma, Inc., an Oklahoma domestic corporation; Lamar Central Outdoor, Inc., Successor in interest to Chancellor Media Whiteco, a Delaware Corporation, Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, THE HONORABLE DANIEL L. OWENS, DISTRICT JUDGE ¶0 Appellant filed condemnation proceeding against Appellees, owners of an outdoor advertising sign, for the removal of the sign from real property previously purchased by Appellant. Parties disagree on the amount Appellees are to be compensated for the taking. The trial court appointed three commissioners to assess just compensation which was determined to be $212,500. Appellant filed a demand for jury trial. The jury returned a verdict in the amount of $206,000. Both parties appealed and we have retained, and consolidated, the matter. AFFIRMED. Kelly F. Monaghan and Lori Gilliard, Holloway & Monaghan, Tulsa, Oklahoma, for Appellant. William H. Hickman and Brad S. Clark, Hickman Law Group, Oklahoma City, Oklahoma, for Appellees. WINCHESTER, J. ¶1 Plaintiff/Appellant, the State of Oklahoma, ex rel. Department of Transportation ("ODOT"), filed this condemnation proceeding against Lamar Advertising of Oklahoma Inc., and Lamar Central Outdoor, Inc. (collectively "Lamar"), for the removal of an outdoor advertising sign and the acquisition of Lamar's leasehold interest associated with the sign. ODOT previously acquired the real property on which the sign was located as part of a highway improvement project to Interstate 40 and, as such, removal of the sign was necessary. ¶2 Lamar erected the sign on the underlying real property pursuant to a written lease agreement with the owners of the land. Lamar has since removed and kept possession of the sign. ODOT argues that the sign is a trade fixture and that trade fixtures are personal property. As such, ODOT claims Lamar is only entitled to the depreciated reproduction costs of the sign or the costs associated with the sign's relocation. Conversely, Lamar argues that the sign's label of personal or real property is irrelevant to this case as the only criteria is fair market value of the sign and its related interests. ODOT asserts that Lamar's method of valuation improperly allows for the recovery of lost business income and profits. Lamar valued its property interests at $429,000 while ODOT valued the property significantly less at roughly $60,000. ¶3 Pursuant to 69 O.S.2011, §1203(c), the trial court selected three disinterested commissioners to assess the just compensation to which Lamar was entitled. The Commissioners were directed to "inspect the real property and consider the injury which the owner(s) may sustain by reason of the condemnation, and they shall assess the just compensation to which the owner(s) is entitled; and they shall ... make a report in writing ... setting forth the ... just compensation for the property taken...." Id. On July 23, 2008, the commissioners issued a report finding that Lamar was entitled to $212,500 for the property interests acquired by ODOT through eminent domain. ODOT demanded a jury trial. ¶4 At the conclusion of trial, the jury returned a verdict awarding Lamar $206,000 in just compensation for its interests. Lamar filed a motion for new trial and a motion to reconsider, both of which the trial court denied. Both parties appealed and we have retained and consolidated the matters. ¶5 ODOT maintains that based on Oklahoma law the sign is personal property. Accordingly, ODOT argues just compensation should be determined based on the cost of relocating the sign and only in the event the sign cannot be relocated the fair market value of the sign itself. Lamar filed Motions in Limine to exclude evidence regarding relocation of the sign, claiming relocation was not an option1, and to prohibit evidence that the sign was personal property. Both Motions were sustained by the trial court and ODOT claims the rulings were in error. ¶6 Prior to trial, ODOT filed a motion for partial summary judgment seeking a determination that pursuant to Oklahoma law, the sign in question was a trade fixture and trade fixtures are personal property under Oklahoma law. ODOT also filed a Daubert Motion to exclude the testimony of Lamar's expert, Paul Wright, arguing that he erroneously valued the sign as if it were real property. ODOT further urges this Court to reject the use of the gross rent multiplier, or similar valuation methods used by Lamar's expert, claiming that such methods improperly award compensation for lost business profits relating to the outdoor advertising sign business. The trial court denied ODOT's motion for partial summary judgment as well as the Daubert motion. ¶7 Conversely, Lamar claims its constitutional rights were violated by having the burden of proof of valuation on it instead of ODOT, the party demanding the jury trial. Lamar also filed a Daubert motion seeking to exclude ODOT's expert's opinions as failing to adequately assess the fair market value of the sign. The trial court denied Lamar's Daubert motion. STANDARD OF REVIEW ¶8 A condemnation proceeding is a special proceeding for the taking of private property for public use and must be carried out in accordance with legislatively-proscribed procedure. See Gaylord v. State ex re. Dept. of Highways, 1975 OK 63, 540 P.2d 558, 560; Bd. Of County Com'rs of Creek Co. v. Casteel, 1974 OK 31, 522 P.2d 608, 610. On appeal in eminent domain proceedings, the verdict of the jury may be set aside only when it manifestly appears that it is unjust and not supported by any competent evidence. Denver, W. & M. Ry. Co. v. Adkinson, 1911 OK 18, 119 P. 247. An appellate court's duty is to ensure that there is "competent evidence reasonably tending to support the verdict of the jury.and no prejudicial errors are shown in the trial court's instructions to the jury or on legal questions presented during trial." Florafax Intern., Inc. v. GTE Market Resources Inc., 1997 OK 7, ¶3, 933 P.2d 282, 287. ¶9 The trial court is vested with wide discretion in determining what information it receives in a condemnation proceeding. See, e.g., State ex rel. Dept. of Transp. v. Little, 2004 OK 74, ¶ 11, 100 P.3d 707, 712 (evaluation of property value left largely to discretion of trial court). Any "competent evidence of matters, not merely speculative, which would be considered by a prospective vendor or purchaser, or which tend to enhance or depreciate the value of the property, is admissible." City of Enid. v. Moyers, 1945 OK 281, ¶5, 165 P.2d 818, 820. The "admissibility of evidence of value in condemnation cases is more largely within the trial court's discretion than is the determination of other issues, so that error predicated upon the exclusion of certain evidence will not be sustained except in cases of manifest error." Finley v. Bd. of County Comm., 1955 OK 321, ¶ 13, 291 P.2d at 339. DISCUSSION ¶10 In 1965, Congress enacted the Highway Beautification Act (HBA) which provided for, among other things, the regulation of outdoor advertising signs along the interstate and federal aid primary highways. See 23 U.S.C. §§131, et seq. Thereafter, Oklahoma adopted its own version of the HBA entitled the Highway Advertising Control Act. See 69 O.S §§1271, et. seq. The Legislature determined that it was "in the public interest to control the size, number, spacing, lighting, type and location" of outdoor advertising structures in certain areas. 69 O.S.2011, §1271. In addition, local municipalities often impose their own restrictions. With all of these regulations, the legal sites for the erection of outdoor advertising signs are dwindling. ¶11 The Fifth Amendment to the U.S. Constitution, and Article 2, Section 24 of the Oklahoma Constitution, both provide that the government shall not take private property for public use without just compensation. Oklahoma case law provides that property owners are entitled to just compensation for their property interests when the government acquires such property through its eminent domain powers and "just compensation shall mean the value of the property taken.." State of Oklahoma, ex rel. Dep't of Transportation v. Norman Industrial Development Corp., 2001 OK 72, 41 P.3d 960; OKLA. CONST. Art. 2, §24. ¶12 Property owners must be placed as fully as possible in the same position they occupied before the government's taking. State ex rel. Dep't of Transp. v. Little, 2004 OK 74, ¶23, 100 P.3d 707, 718; Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶12, 870 P.2d 762, 766. Further, all presumptions must favor the landowner, not the condemnor, and constitutional eminent domain statutes must be strictly construed in the landowner's favor. See State ex rel. Department of Transportation v. Sissom, 2009 OK 42, ¶9, 236 P.3d 49, 51, citing Public Serv. Co. v. B. Willis, CPA, Inc., 1997 OK 78, ¶ 16, 941 P.2d 995, 999. ¶13 Where billboards are part of a taking in a condemnation proceeding, Oklahoma law provides that the just compensation to a sign owner must be based on fair market value for the "outdoor advertising and property rights pertaining thereto." 69 O.S.2011, §1280(A). The Act further specifies that outdoor advertising "is a trade fixture, and owners shall be awarded just and fair compensation for its taking." 69 O.S.2011, §1280(B). Although trade fixtures are often treated like personal property between a lessee and lessor, in condemnation proceedings they are generally treated as real property. ¶14 Pursuant to 27 O.S.2011, §14, "[w]here any interest in real property is acquired, an equal interest shall be acquired in all building, structures or other improvements located upon the real property." The statute goes on to provide: For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as by subsection A of this section, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building, structure or improvement at the expiration of his term, and the fair market value which such building, structure or improvement contributes to the fair market value of the real property to be acquired or the fair market value of such building, structure or improvement for removal from the real property, whichever is greater, shall be paid to the tenant therefor. 27 O.S. § 14. See also Almota Farmers Elevator & Warehouse Co. v. U.S., 409 U.S. 470, 477 n.5, 93 S. Ct. 791, 796 n.5 ("if the . fixtures are attached to the real estate, they must be treated as real estate in determining the total award.") Because an outdoor advertising sign falls under the category of a "structure or other improvement," further designation as personal or real property is unnecessary as the billboard owner must be provided fair market value regardless of the characterization of the property. ¶15 Oklahoma case law has consistently recognized that property interests entitled to compensation include every valuable interest that can be enjoyed and recognized as property, including leasehold interests and personal property. Southern Kansas Ry. Co. v. City of Okla. City, 1902 OK 63, 69 P. 1050 (syllabus 1). See also Graham v. City of Duncan, 1960 OK 149, 354 P.2d 458 (property entitled to compensation includes easements, personal property and a tenant's crops). Property taken through eminent domain and for which just compensation must be made "includes not only the soil but everything attached to it, whether attached by the course of nature, as trees, herbage, water, mines, and minerals, or by the hand of man, as buildings, fences, or other structures. . . ." Wright v. State ex rel. Dept. of Highways, 1951 OK 119, ¶11, 230 P.2d 462, 463 (quoting 29 C.J.S. § 66, p. 855). Accordingly, Lamar is entitled to the fair market value of the property interests taken, whether real or personal. ¶16 In condemnation proceedings, the sole issue is the fair market value of the property taken and damage to the remaining property, if any. Eberle v. State of Oklahoma ex rel. Dept. of Highways, 1963 OK 224, ¶ 14, 385 P.2d 868, 871. There is no rigid formula for determining fair market value as a measure of just compensation. Instead, all reasonable considerations that might impact the fair market value of a sign's property interests should be reviewed. McAlester Urban Renewal Auth. V. Lorince, 1972 OK 109, 499 P.2d 295. ¶17 There are three standard property appraisal approaches: the cost approach, the income approach and the comparable sales approach. Liddell v. Heavner, 2008 OK 6, ¶20, 180 P.3d 1191. Where circumstances warrant, however, other recognized approaches or variations thereof can be employed. Id. In the present case, ODOT's expert used a cost approach analysis to value Lamar's interests at $60,094. This amount included $10,900 for a positive leasehold position and $49,194 for actual sign value after depreciation. Conversely, Lamar's expert used the gross income multiplier method, a method that he testified is commonly utilized by buyers and sellers in the market of billboard advertising. Under this method, the expert determined that Lamar's fair market value loss was $410,184.2 ¶18 Fair market value is the amount of money which a purchaser willing, but not obliged, to buy the property would pay to an owner willing, but not obliged, to sell it. See Grand Hydro v. Grand River Dam Auth., 1943 OK 158, ¶9, 139 P.2d 798; OUJI-Civ 25.5. When measuring the fair market value of real property in a condemnation proceeding, courts may not restrict how the determination of fair market value is derived to any particular method for appraisal. See, e.g., State of Okla. ex rel. Dept. of Transp. v. Lamar Central Outdoor, Inc., and Sober Bros., Inc., 2007 OK CIV APP 105, 170 P.3d 551 (trial court may not restrict how fair market value is determined in billboard valuation: any recognized appraisal method may be employed); Sill Corp. v. U.S., 343 F.2d 411, 416 (10th Cir. 1965)(applying Okla. law)(no particular method for determining fair market value as a measure of just compensation should be espoused; instead, allowing the use of a number of methods and factors). In Sill, the court reasoned that fair market value may be measured using comparable sales, reproduction costs, capitalization of net income or any interaction of such determinants. Sill Corp. v. U.S., 343 F.2d 411, 416 (10th Cir. 1965). ¶19 In accordance with this guidance, the trial court first instructed the commissioners to "employ all recognized appraisal methods" as well as "any other relevant factors reasonably affecting the fair market value of the property interest in reaching the determination of just compensation." The jury was later given the same instructions. ¶20 ODOT contends that Lamar's expert should not consider income from Lamar's sign face rentals in determining the sign site's fair market value. However, in State ex rel. Dept. of Highways v. Robb, 1969 OK 47, ¶11, 454 P.2d 313, 317, the Court held that "within the exercise of sound judicial discretion by the trial court evidence concerning the income and profits from a business being conducted on the property involved is admissible, ... as bearing upon the question of the fair market value of such property, although it is not admissible for the purpose of establishing a separate item of damages for loss of business profits." See also, 7A Nichols on Eminent Domain §G9A.04(4)(c)(ii) ("When the business income or loss relates to market value, or it is otherwise demonstrated that such evidence is germane to a depreciation in market value after a taking, it may be admissible relative to market value, but the loss is not recoverable as a separate component of market value or severance damages."). ¶21 Likewise, in Finley v. Bd. of County Commissioners, 1955 OK 321, ¶13, 291 P.2d 333, 339, the Court recognized that "evidence is admissible as to gross sales and the net profits of a business to aid the jury in determining the depreciation in the market value of the property taken or damaged." The Court acknowledged in Finley that the trial court admitted a "wide range of evidence" relative to the value of the property and that the testifying experts considered the income from the property in arriving at their conclusions as to the market value. Id. All factors that may be given weight in the negotiation of a market transaction are factors that affect the determination of fair market value. We agree that income generated from the rental of the sign's face can be a relevant factor for consideration in the determination of fair market value.3 ¶22 The property taken from Lamar is a sign site that includes the billboard structure as well as the real property leasehold for a specific location identified by an outdoor advertising permit. Lamar's expert testified that the existence of a sign structure at a specific location is a factor that a buyer or seller in the marketplace would consider in valuing a sign site. ODOT's method of valuation would value all signs the same regardless of sign site location. This approach fails to take into account the sign's fair market value as a willing buyer would likely pay more for a sign on a busy highway than it would for a sign on a remote, country road. Lamar is entitled to full indemnification by just compensation which includes an evaluation of its fair market value. ¶23 As for the exclusion of evidence relating to the sign's relocation options, Lamar argued it could not relocate its sign to a similarly situated site and the trial court agreed. Taking into account the parties' witness testimony and evidence, the trial court determined prior to trial that evidence of relocation should not be submitted in this case. There is ample evidence in the record for the court to have ruled that relocation was not a possibility herein and, therefore, should not be considered. While evidence of relocation may be relevant in another case of this nature, we do not find the trial court abused his broad discretion in excluding evidence of the possibility of relocation in this case. Finley v. Bd. of County Commissioners, 1955 OK 321, ¶13, 291 P.2d 333, 339. ¶24 On appeal, Lamar also argues it shouldn't have the burden of proof regarding the determination of fair market value because it did not demand the jury trial, ODOT did. However, Oklahoma law has long provided that once the condemnor proves the validity of a taking, the burden shifts to the condemnee to prove the value of the property in condemnation proceedings. See Nichols v. Oklahoma City, 1945 OK 66, ¶7, 157 P.2d 174, 175. See also, Western Farmers Electric Coop. v. Rowlett, 1955 OK 254, ¶0, 288 P.2d 726 (defendant/condemnee has burden of proof in establishing their damages); Curtis v. WFEC Railroad Co., 2000 OK 26, ¶17, 1 P.3d 996 (condemnee bears burden of establishing damages). ¶25 In Nichols, the condemnor similarly appealed the award of the commissioners and, at trial, received an award slightly less than the commissioners' award. The condemnee complained of error in placing the burden of proof on him at trial. The Nichols court rejected the condemnee's argument finding that the burden was properly placed on the condemnee as per the general rule. Nichols v. Oklahoma City, 1945 OK 66, ¶7, 157 P.2d 174, 175. Accordingly, the burden of proof as to valuation properly rested with Lamar. ¶26 Lamar further argues that it has been denied due process because of the undue burden to secure a jury award in excess of ten percent of the commissioners' award in order to seek attorneys' fees when ODOT is the party that demanded the jury trial. Pursuant to 27 O.S.2011, §11(3), a property owner may be reimbursed for "reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings" when the jury's award exceeds the court-appointed commissioners' award by ten percent. Here, the jury returned an award for slightly less than the commissioners' award. Lamar argues that it should be allowed to recover its fees because ODOT demanded the jury trial and it would be unfair to make Lamar responsible for such costs. ¶27 In condemnation proceedings, there is no common law right to an award of attorneys' fees. Every party is responsible for its own litigation costs unless provided otherwise by statute. State ex rel. Dept. of Transp. v. Carter, 2005 OK 7, ¶6, 107 P.3d 593, 594. Section 11 of title 27 is such a statute and it shifts the attorneys' fees obligation to the condemnor where the jury award exceeds the commissioners' award by ten percent or greater. Oklahoma Turnpike Auth. v. New, 1993 OK 42, ¶6, 853 P.2d 765, 766. Nevertheless, because the statute, by its express terms, is only applicable where a jury award exceeds the commissioners' award by ten percent, it is not triggered in this case and Lamar is not entitled to its fees regardless of which party brought this action.4 CONCLUSION ¶28 This court will not substitute its judgment for that of a jury in matters of damages to be awarded for the condemnation of property for a public use, nor will it disturb the verdict of a jury if supported by any competent evidence. Eberle v. State of Oklahoma ex rel. Department of Highways, 1963 OK 224, 385 P.2d 868. We find there was competent evidence to support the verdict of the jury as to the amount of damages awarded Lamar. As such, we find no grounds for reversing the judgment of the lower court. The parties' requests for oral argument are denied. AFFIRMED. ALL JUSTICES CONCUR FOOTNOTES 1 Lamar contends that Oklahoma City passed a complete ban on the construction of new billboards in the Downtown Scenic Area where the newly constructed I-40 is located, prohibiting the relocation of the sign. 2 Lamar's expert testified that many factors went into his valuation, including the location of the sign, the gross annual rent of the sign face, what a willing buyer would pay for the sign, the size of the sign, the circulation, the traffic volume and the sign's overhead. He then came up with a multiplier of six by analyzing the sale of similar billboards. He also utilized a second approach, the cash flow multiplier method, in which he determined the fair market value to be approximately $429,000. 3 A majority of states concur with the conclusion that advertising income generated from a billboard face that cannot be relocated should be considered in valuing leasehold interests in order to ensure the sign owner will be justly compensated. See 8A Nichols on Eminent Domain, §23.04[4] (West 2005). See also, Nat'l Adv. Co. v. State, Dept. of Transp., 993 P.2d 62 (Nev. 2000) (advertising income appropriately considered in valuing condemned leasehold interests, noting importance of location); Lamar Corp. v. Commonwealth Transp. Comm'r, 552 S.E.2d 61 (Va. 2001) (evidence of income admissible because intrinsic to land, not business profit); National Advertising v. State, DOT, 611 So. 2d 566, 568-70 (Fla.Dist.App.1992) (evidence of rental income is relevant to value of leasehold interest); State v. Obie Outdoor Advertising, 516 P.2d 233 (Wash. 1973)(rental income appropriately considered in valuing property where sign could not be relocated) City of Scottsdale v. Eller Outdoor Advertising, 579 P.2d 590 (Ariz.App.1978) (valuation based on rental income appropriate for unique billboard location); Lamar Advantage Holding Co., Inc. v. Arkansas State Highway Comm'n, 253 S.W.3d 914 (2007) (income primarily function of unique location); DURA v. Berglund-Cherne, 568 P.2d 478 (1977) (rental income generated by uniqueness of land appropriate consideration). 4 A similar due process argument was rejected by the Court in Root v. Kamo Elec. Co-op, Inc., 1985 OK 8, 699 P.2d 1083. In Kamo, the Court addressed a similar statute which required the jury award to exceed the commissioners' award by ten percent to trigger an award of attorneys' fees. The Kamo Court found "the classification as to the qualification for the award to be reasonable." Id. at ¶39.  

9ef51146-537e-478e-8191-da0a651afcd8

Smith v. City of Stillwater

oklahoma

Oklahoma Supreme Court

SMITH v. CITY OF STILLWATER2014 OK 42Case Number: 111971Decided: 05/20/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RANDY SMITH, as the natural father and next of kin of KYLE SMITH, deceased, Petitioner/Appellant, v. THE CITY OF STILLWATER and THE BOARD OF COUNTY COMMISSIONERS FOR PAYNE COUNTY, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Petitioner/Appellant Randy Smith (Smith), the father of Kyle Smith (Decedent), brought action against the state and political subdivisions alleging tortious conduct on the part of law enforcement in pursuing Decedent, who was killed during police pursuit while operating a motorcycle. The trial court dismissed the Board of County Commissioners (County) on grounds of sovereign immunity, denied Smith's request to reconsider, and granted summary judgment in favor of the City of Stillwater (City) after determining its officers owed no legal duty to Decedent. Smith appealed. The Court of Civil Appeals affirmed in part and reversed in part. Both Smith and the County filed Petitions for Certiorari. The Court granted certiorari to address: 1) whether the County possesses immunity from suit for the actions taken by its law enforcement officers in pursuit of decedent; and 2) whether the City and County owed a legal duty to Decedent. This Court determines the answer to both questions is no. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS. Woodrow K. Glass and Scott F. Brockman, Ward & Glass, L.L.P., Norman, Oklahoma, for Petitioner/Appellant Randy Smith. John Edward Dorman, Stillwater, Oklahoma, for Defendant/Appellee City of Stillwater. Chris J. Collins and Stephen L. Geries, Collins Zorn & Wagner, PC, Oklahoma City, Oklahoma, for Defendant/Appellee Board of County Commissioners for Payne County. COMBS, J.: ¶1 Decedent was allegedly engaged in drag racing while operating a motorcycle on the night of August 8, 2008. A police officer for the City of Stillwater attempted to stop Decedent. When Decedent failed to stop, several Payne County and City of Stillwater law enforcement officers pursued him. In the course of the pursuit, Decedent drove his motorcycle into the edge of a "T" intersection, resulting in a crash into a creek where he struck a tree and was killed. I. Procedural History ¶2 Smith, as the natural father and next of kin of Decedent, filed a wrongful death action pursuant to 12 O.S. § 1054 on February 8, 2010, against the City, the County, and the State of Oklahoma.1 In his Petition, Smith asserted, among other things, that the defendants: 1) "maintained policies related to pursuits of individuals suspected of committing major and minor offenses"; 2) the defendants' law enforcement officers "negligently failed to follow standard and acceptable policy practices"; and 3) the defendants "negligently trained and supervised those individual law enforcement officers engaged in the pursuit of Kyle Smith on August 8, 2008." Petition, Record on Accelerated Appeal, pp. 3-5. ¶3 The County filed a motion to dismiss for failure to state a claim on April 21, 2010, pursuant to 12 O.S. §2012(B)(6). The County argued that it was immune from any liability pursuant to certain provisions of the Governmental Tort Claims Act (GTCA), namely those found at 51 O.S. Supp. 2004 §155(4)-(5)2, which provides: The state or a political subdivision shall not be liable if a loss or claim results from: … 4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy; 5. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees; The trial court sustained the County's motion to dismiss on July 1, 2010, based upon the application of the immunity provisions of the GTCA. ¶4 Approximately one week after the trial court granted the County's motion to dismiss, this Court decided State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1. In Gurich, this Court examined the applicability of the immunity provisions of Section 155 of the GTCA to suits based on the actions of law enforcement officers engaged in police pursuits, and determined the State did not enjoy absolute immunity for the actions of its officers engaged in police pursuits. 2010 OK 56, ¶7. On August 9, 2010, after this Court decided Gurich, Smith filed a motion to reconsider, citing the Gurich decision. The trial court entered an order November 9, 2010, overruling Smith's motion and formally dismissing the County. ¶5 The City made a motion for summary judgment on August 31, 2012. In its Motion for Judgment and Brief in Support, the City argued that, much like the County, it was immune from liability pursuant to Section 155 of the GTCA. The City also asserted that its law enforcement officers owed no duty of care to Decedent because: 1) at common law officers did not owe a duty of care to a fleeing suspect; and 2) while this Court determined in Gurich that officers owe a duty of care to innocent bystanders when they are engaged in pursuit of a fleeing suspect, the Court was silent concerning a duty to the fleeing suspect. ¶6 In response, Smith argued that pursuant to Gurich, the City was not immune to suit based on the protections of 51 O.S. §155. Smith also argued that the City did owe a duty of care to Decedent, created by the pursuit policies of the City's police department and by the language of 47 O.S. §11-106. The trial court granted summary judgment in favor of the City on June 10, 2013, finding: 1) the City was not immune from tort liability for the manner in which emergency vehicles were operated, pursuant to Gurich; and 2) law enforcement officers owe no duty to protect fleeing suspects from their own actions, as the relief contemplated by Gurich was limited to bystanders. The trial court also declined to revisit its earlier ruling dismissing the County. ¶7 Smith appealed, and the Court of Civil Appeals, Division I, affirmed in part, reversed in part, and remanded, holding that: 1) the trial court abused its discretion by denying Smith's motion to reconsider the order dismissing the County based on governmental immunity; and 2) the City was entitled to judgment as a matter of law, as law enforcement officers in a police pursuit do not owe a duty of care to the fleeing suspect. ¶8 Smith filed his Petition for Writ of Certiorari on December 23, 2013, asserting that the Court of Civil Appeals erred by holding that law enforcement officers in a police pursuit do not owe a duty of care to the fleeing suspect. The County filed its Petition for Certiorari on December 26, 2013, asserting that: 1) its dismissal by the trial court was proper because it was immune to suit for the actions of its law enforcement officers pursuant to 51 O.S. §155; and 2) the Court of Civil Appeals erred by holding that a duty of care to a fleeing suspect might be imposed by mandatory guidelines set forth in a law enforcement entity's policy on vehicular pursuits. The Court granted both petitions for certiorari, and the cause was assigned to this office on March 10, 2014. II. Title 51 O.S. §155 Does Not Immunize Political Subdivisions for the Actions Taken by their Law Enforcement Officers while Engaged in Police Pursuits. ¶9 The County asserts on certiorari that the Court of Civil Appeals erred when it determined the trial court abused its discretion by failing to grant Smith's motion to reconsider the trial court's dismissal of the County on the grounds that the County is immune from liability pursuant to the GTCA, 51 O.S. §151 et seq., for actions taken by its law enforcement officers engaged in police pursuit. This Court determines that the County is not immune from liability pursuant to the GTCA, 51 O.S. §151 et seq., and the trial court abused its discretion by failing to reconsider its dismissal of the County. A. Standard of Review ¶10 A "motion to reconsider" does not technically exist within the statutory nomenclature of Oklahoma practice and procedure. Person v. Canupp, 1988 OK 47, ¶3 n. 1, 754 P.2d 548; Sellers v. Oklahoma Pub. Co., 1984 OK 11, ¶11, 687 P.2d 116. However, if timely filed, a "motion to reconsider" may be treated as a motion for new trial under 12 O.S. §651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S. §§ 1031 and 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order). Person, 1988 OK 47, ¶3 n. 1; Shepp v. Hess, 1989 OK 28, ¶1 n.2, 770 P.2d 34. ¶11 The standard of review for both denial of a motion for a new trial and denial of a motion to modify or to vacate a final order or judgment is the same: abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶7, 107 P.3d 595; Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶5, 13 P.3d 480. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d 890; Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶12, 27 P.3d 477; KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶10, 9 P.3d 683. However, in this cause, the propriety of the trial court's denial of the "motion for reconsideration" rests on the underlying correctness of its decision to dismiss the County. The abuse of discretion question is therefore settled by our de novo3 review of the dismissal's correctness.4 ¶12 This Court discussed the parameters of motions to dismiss in detail in Gens v. Casady School, 2008 OK 5, 177 P.3d 565. This Court noted that generally motions to dismiss are viewed with disfavor. Casady School, 2008 OK 5, ¶8; May, M.D. v. Mid-Century Ins. Co., 2006 OK 100, ¶10, 151 P.3d 132; Lockhart v. Loosen, 1997 OK 103, ¶4, 943 P.2d 1074. The function of a motion to dismiss is to test the law of the claims, not the facts supporting them. Casady School, 2008 OK 5, ¶8; State ex rel. Wright v. Oklahoma Corp. Comm'n, 2007 OK 73, ¶52, 170 P.3d 1024; Estate of Hicks ex rel. Summers v. Urban East, Inc., 2004 OK 36, ¶5, 92 P.3d 88. No dismissal for failure to state a claim upon which relief may be granted should be allowed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle them to relief. Casady School, 2008 OK 5, ¶8; State ex rel. Wright, 2007 OK 73, ¶52; Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, n.6, 861 P.2d 295. ¶13 Plaintiffs need neither identify a specific theory of recovery nor set out the correct remedy or relief to which they may be entitled. Casady School, 2008 OK 5, ¶8; Mid-Century Ins. Co., 2006 OK 100, ¶10. If any set of facts can be established which is consistent with the allegations, a motion to dismiss should be denied. Casady School, 2008 OK 5, ¶8; Loosen, 1997 OK 103, ¶4; Indiana Nat'l Bank v. State Dept. of Human Services, 1994 OK 98, ¶4, 880 P.2d 371. Dismissal is appropriate only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable theory. Casady School, 2008 OK 5, ¶8. Where not all claims appear to be frivolous on their face or without merit, dismissals for failure to state a claim upon which relief may be granted are premature. Casady School, 2008 OK 5, ¶8; Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, ¶7, 915 P.2d 359. B. The Governmental Tort Claims Act ¶14 The GTCA is the exclusive remedy by which an injured plaintiff may recover against a governmental entity for its negligence. Speight v. Presley, 2008 OK 99, ¶11, 203 P.3d 173; Fuller v. Odom, 1987 OK 64, 741 P.2d 449. The GTCA adopts the doctrine of sovereign immunity and provides that the State, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. Title 51 O.S. §152.1(A); Nelson v. Pollay, 1996 OK 142, ¶5, 916 P.2d 1369. The GTCA waives the immunity of the State and its political subdivisions, but only to the extent and in the manner provided in the act. Title 51 O.S. §152.1(B); Anderson v. Eichner, 1994 OK 136, ¶9, 890 P.2d 1329. Title 51 O.S. §153 extends governmental accountability to all torts for which a private person or entity would be liable, subject only to the act's specific limitations and exceptions. Eichner, 1994 OK 136, ¶9. The County asserts that it retains its sovereign immunity and is shielded from suit pursuant to specific limitations and exceptions codified at 51 O.S. §155(4)-(5), that provide: The state or a political subdivision shall not be liable if a loss or claim results from: … 4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy; 5. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees; C. State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1. ¶15 This Court addressed the issue of whether 51 O.S. §155(4)-(6) together grant blanket immunity to the State or political subdivisions for the actions of their officers engaged in police pursuits in State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1. In that cause, the widow of an innocent bystander brought suit against the State of Oklahoma after the bystander was killed when a fleeing suspect involved in a police chase struck the vehicle in which the bystander was a passenger. The state asserted it was immune to suit pursuant to 51 O.S. §155(4)-(6). This Court held to the contrary, and in doing so, explained that 51 O.S. §155(4)-(6) cannot be too broadly interpreted. Gurich, 2010 OK 56, ¶11. ¶16 Specifically, the Court determined that an interpretation of 51 O.S. §155(4)-(6) which protects any "discretionary decision" made by a law enforcement agency or its employee in order to provide police protection from action in tort is too broad. Gurich, 2010 OK 56, ¶9. Examining prior precedent, this Court noted that "[a]lmost all acts of government employees involve some element of choice and judgment." Gurich, 2010 OK 56, ¶10 (quoting Nguyen v. State, 1990 OK 21, ¶4, 788 P.2d 962). Therefore, "the government retains its immunity with respect to formulation of policy, but is subject to liability for routine decisions and daily implementation of the policy or planning level decisions." Gurich, 2010 OK 56, ¶10 (quoting Nguyen, 1990 OK 21, ¶5). "Negligent performance of a law enforcement function is not shielded from immunity under the GTCA." Gurich, 2010 OK 56, ¶10 (citing Salazar v. City of Oklahoma City, 1999 OK 20, ¶27, 976 P.2d 1056) (emphasis added). In summation: Exemptions 4, 5, and 6, when read together with this Court's explanations, define clearly the scope of statutory immunity concerning law enforcement. The State and its political subdivisions enjoy immunity for the choice to adopt or enforce a law, the formulation of law enforcement policy, and the method by which policy is implemented. The exemptions do not apply to tortious acts of government servants in the daily implementation of policy. The blanket immunity the State seeks concerning police pursuits does not exist in Oklahoma's statutory law or jurisprudence. Gurich, 2010 OK 56, ¶11 (emphasis added). ¶17 The County attempts to distinguish Gurich from this cause. It asserts Smith's Petition rests entirely on two claims that fall within the exemptions of 51 O.S. §155(4)-(5): 1) that the County and City's officers "negligently failed to follow standard and acceptable policy practices"; and 2) that the County and City "negligently trained and supervised those individual law enforcement officers engaged in the pursuit of Kyle Smith on August 8, 2008." County's Petition for Certiorari, p.5. The County essentially argues that because Smith's claims mention policy or planning decisions, the County's assertion that 51 O.S. §155(4)-(5) grant immunity is consistent with this Court's pronouncement in Gurich, and therefore the trial court's decision to grant the County's motion to dismiss for failure to state a claim was proper. This is a misinterpretation of both criteria for granting a motion to dismiss for failure to state a claim, as well as the core holding of Gurich. ¶18 Smith's petition alleges that defendants 1) "maintained policies related to pursuits of individuals suspected of committing major and minor offenses"; 2) "law enforcement officers … failed to follow standard and acceptable policy practices"; and 3) "as a direct result of the negligent actions of law enforcement officers … Kyle Smith was wrongfully deprived of his life." Record on Accelerated Appeal, pp. 4-5. The mere mention of "policy" in Smith's allegations is not sufficient to invoke the exemptions of 51 O.S. §155(4)-(5). At least some of Smith's allegations very clearly challenge the failure of individual law enforcement officers to adhere to policies that were already in place while in pursuit of Smith: the negligent performance of a law enforcement function,5 not the adoption of policy or planning level decisions. Pursuant to Gurich and Nguyen, "the government retains its immunity with respect to formulation of policy, but is subject to liability for routine decisions and daily implementation of the policy or planning level decisions." Gurich, 2010 OK 56, ¶10; Nguyen, 1990 OK 21, ¶5. ¶19 The trial court relied upon an erroneous conclusion of law when it granted the County's motion to dismiss for failure to state a claim upon which relief could be granted, and therefore abused its discretion by denying Smith's motion to reconsider. II. Law Enforcement Officers Engaged in Police Pursuit Do Not Owe a Duty of Care to the Suspect Being Pursued. ¶20 The second question on appeal, presented in Smith's Petition for Writ of Certiorari, is whether law enforcement officers engaged in vehicular pursuit owe a duty of care to the fleeing suspect. This is an issue of first impression in Oklahoma. The trial court determined they do not, and granted summary judgment in favor of the City. The Court of Civil Appeals, Division I, affirmed. We hold that Law Enforcement Officers engaged in police pursuits do not owe a duty of care to the suspect being pursued. A. Standard of Review ¶21 A moving party is entitled to summary judgment as a matter of law when the pleadings, affidavits, depositions, admission or other evidentiary materials establish that no genuine issue of material fact exists. Miller v. David Grace, Inc., 2009 OK 49, ¶10, 212 P.3d 1223; Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924. In reviewing the grant or denial of summary judgment, this Court views all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the nonmoving party. Miller, 2009 OK 49, ¶10; Leitner, 1989 OK 146, ¶ 9. Because a grant of summary judgment is purely a legal issue, this Court's standard of review on appeal is de novo. Miller, 2009 OK 49, ¶10; Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. B. Title 47 O.S. §11-106 does not provide that law enforcement officers of the State or a political subdivision engaged in police pursuit owe a duty of care to the suspect they are pursuing. ¶22 There are three elements to a claim for negligence: 1) a duty owed by the defendant to protect the plaintiff from injury; 2) a failure to perform that duty; and 3) injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care. Berman v. Laboratory Corp. of America, 2011 OK 106, ¶16, 268 P.3d 68; Smith v. Hines, 2011 OK 51, ¶12, 261 P.3d 1129. The cornerstone of a negligence action is the existence of a duty, and the issue of whether a duty exists is a question of law. Gurich, 2010 OK 56, ¶6; Miller, 2009 OK 49, ¶10; Bray v. St. John Health Sys., Inc., 2008 OK 51, ¶6, 187 P.3d 721. If the defendant did not owe a duty of care to the plaintiff, there can be no liability for negligence as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶12, 160 P.3d 959. ¶23 Smith argues that the provisions of 47 O.S. §11-106 create a duty of care on the part of law enforcement officers owed to suspects they are pursuing in a vehicle. Title 47 O.S. §11-106 is part of the Model Uniform Vehicle Code adopted by Oklahoma in 1961, setting the "Rules of the Road." Gurich, 2010 OK 56, ¶21; see 1961 Okla Sess. Laws 373 (codified at 47 O.S §§11-101 to 11-1405).6 Title 47 O.S. §11-106(A)-(D) grant certain exemptions to the "Rules of the Road" for drivers of emergency vehicles in specific circumstances, and provide: A. The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privilege set forth in this section, but subject to the conditions herein stated. B. The driver of an authorized emergency vehicle may: 1. Park, or stand, irrespective of the provisions of this chapter; 2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; 3. Exceed the maximum speed limits so long as speeding does not endanger life or property; 4. Disregard regulations governing direction of movement; and 5. Disregard regulations governing turning in specified directions. C. The exemptions herein granted to the driver of an authorized emergency vehicle shall apply only when the driver is properly and lawfully making use of an audible signal or of flashing red or blue lights or a combination of flashing red and blue lights meeting the requirements of Section 12-218 of this title, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red or blue light visible from in front of the vehicle. This subsection shall not be construed as requiring a peace officer operating a police vehicle properly and lawfully in response to a crime in progress to use audible signals. D. The exemptions in paragraphs 3 and 5 of subsection B of this section shall be granted to a law enforcement officer operating an authorized emergency vehicle for law enforcement purposes without using audible and visual signals required by this section as long as the action does not endanger life or property if the officer is following a suspected violator of the law with probable cause to believe that: 1. Knowledge of the presence of the officer will cause the suspect to: a. destroy or lose evidence of a suspected felony, b. end a suspected continuing felony before the officer has obtained sufficient evidence to establish grounds for arrest, or c. evade apprehension or identification of the suspect or the vehicle of the suspect; or 2. Because of traffic conditions, vehicles moving in response to the audible or visual signals may increase the potential for a collision. The exceptions granted in this subsection shall not apply to an officer who is in actual pursuit of a person who is eluding or attempting to elude the officer in violation of Section 540A of Title 21 of the Oklahoma Statutes. However, while 47 O.S. §11-106(A)-(D) serve to grant drivers of emergency vehicles certain exemptions to the "Rules of the Road," 47 O.S. §11-106(E) provides: E. The provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.7 ¶24 In Gurich, this Court examined the language of 47 O.S. §11-106 in the context of police pursuits and determined that reckless disregard for the safety of others is the duty of care an emergency vehicle driver owes to the public while operating pursuant to 47 O.S. §11-106. 2010 OK 56, ¶24. This Court was persuaded by multiple factors, including: 1) the "reckless disregard" clause in Section 11-106(E), that cannot be considered surplusage; 2) public policy demands a standard higher than mere negligence for situations involving emergency vehicles; and 3) any decision to pursue or continue a pursuit involves striking a balance between law enforcement effectiveness and the risk of injury to the public. Gurich, 2010 OK 56, ¶25-27. ¶25 This Court decided Gurich in the specific context of claims against the State brought by bystanders injured in the course of police pursuits. 2010 OK 56, ¶1 & ¶18. Smith argues, however, that the language of 47 O.S. §11-106 and Gurich indicate that law enforcement officers owe the same duty of care not just to innocent bystanders, but to the suspect who is the very subject of the pursuit. Smith focuses on specific language in 47 O.S. §11-106(E): The provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others. (Emphasis added). Smith argues that "all persons" must be read to include the fleeing suspect. ¶26 Other states have adopted various statutory provisions similar to those of 47 O.S. §11-106 and interpreted them in the context of this factual situation. The majority of those states have found no duty to the fleeing suspect. In City of Winder v. McDougald, 583 S.E.2d 879 (Ga. 2003), the Supreme Court of Georgia determined that Georgia's analogous statutory provision, found at OCGA § 40-6-68 , did not extend liability to the subject of a police chase. The Supreme Court of Georgia determined that because the statute and its reckless disregard standard served to limit liability, the legislature did not intend to simultaneously expand liability to cover injuries to a fleeing suspect, and to read it as doing so would be inconsistent with public policy and lead to an absurd result. McDougald, 583 S.E.2d at 880. ¶27 In Robinson v. City of Detroit, 613 N.W.2d 307 (Mich. 2000), the Supreme Court of Michigan determined that the police owed no duty of care to a wrongdoer, whether a fleeing driver or passenger. The court determined that such a result was consistent with the language of M.C.L. §257.632, which did not exempt police from the consequences of a "reckless disregard for the safety of others." Robinson, 613 N.W.2d at 314. ¶28 In Bryant v. Beary, 766 So. 2d 1157 (Fla. Dist. Ct. App. 2000) (review denied by Bryant v. Beary, 789 So. 2d 343 (Fla. 2001)), the Florida District Court of Appeals determined that no duty to a fleeing driver was created by Section 316.072(C) of the Florida Statutes (1997), which provided: (c) The foregoing provisions shall not relieve the driver of a vehicle specified in paragraph (a) from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his or her reckless disregard for the safety of others. The court determined that the language of the statute was: … not intended to create a duty where none exists, but to preserve any that do exist. Common sense and all rational notions of public policy dictate that a violator fleeing law enforcement who injures himself as a result of his own criminal misconduct should not be able to bring an action for negligence against the law enforcement officer trying to detain him, or against his employer. ¶29 Only one court has considered this issue and determined that law enforcement officers owe a duty of care to fleeing suspects. In Torrie v. Weber County, 2013 UT 48, 309 P.3d 216, the Supreme Court of Utah examined Utah Code section 41-6a-212(6), which provides: (6) The privileges granted under this section do not relieve the operator of an authorized emergency vehicle of the duty to act as a reasonably prudent emergency vehicle operator in like circumstances. The court determined that: [t]he legislature's failure to include a carve-out exception to the duty referenced in subsection (6) for fleeing suspects, an act which we consider to be deliberate on the part of the legislature, reinforces our determination that such a duty should therefore be imposed. While we recognize that other jurisdictions have looked to the plain language of similar statutes and interpreted that the duty did not extend to fleeing suspects, we decline to depart from our established plain language analysis. Weber County, 2013 UT 48, ¶¶11-12 (internal citations omitted). ¶30 Smith argues that we should adopt the view of the Supreme Court of Utah in Torrie v. Weber County, and hold that the Legislature's inclusion of the language "duty to drive with due regard for the safety of all persons" creates a duty on the part of law enforcement to fleeing suspects. Smith correctly asserts that, generally, statutes are to be interpreted in accordance with their plain, ordinary meaning according to the import of the language used. Hubbard v. Kaiser-Francis Oil Co., 2011 OK 50, ¶8, 256 P.3d 69; In re Certification of Question of State Law, 1977 OK 16, ¶5, 560 P.2d 195. Nevertheless, where the literal meaning of a statute would result in great inconvenience or lead to absurd consequences the Legislature could not have contemplated, we are bound to presume such consequences were not intended, and must adopt a construction which will promote the ends of justice and avoid absurdity. Hubbard, 2011 OK 50, ¶8; Cox v. Dawson, 1996 OK 11, ¶ 20, 911 P.2d 272; Oliver v. City of Tulsa, 1982 OK 121, ¶ 25, 654 P.2d 607. ¶31 Title 47 O.S. §11-106(E) limits liability by setting a higher standard than mere negligence for police pursuits. See Gurich, 2010 OK 56, ¶¶25-27. As this Court stated in Gurich: A police pursuit is "one of the most volatile, dangerous, and unpredictable tasks of police work." Andrew G. Cooley & Brock Gavery, Police Pursuit and High-Speed Driving Lawsuits, The Police Chief, Oct. 2006 at 26, 28. As such, liability should be reserved only for those who recklessly disregard the risks to the public created by the decision to commence or continue a police pursuit. 2010 OK 56, ¶26. By intentionally incorporating the reckless disregard standard in 47 O.S. §11-106(E), the legislature was restricting liability for officers engaged in police pursuits by requiring more than mere negligence, precisely because "public policy demands a higher standard." Gurich, 2010 OK 56, ¶26. ¶32 Public policy demands a higher standard because any decision to pursue or continue a pursuit involves striking a balance between law enforcement effectiveness and the risk of injury to the public. A standard of "reckless disregard" is more consistent with the balancing of benefit and risk required by a typical police policy than is a standard of mere negligence. As the Kansas Supreme Court observed, "the duty of protecting the public is coextensive with the duty of apprehending suspected criminals." Robbins, 172 P.3d at 1199. Gurich, 2010 OK 56, ¶27. Central to this balancing act is a determination of which is greater: the need to apprehend the suspect or the risk to the innocent public. To assume that by limiting police liability to the public (by imposing a standard greater than negligence) the Legislature also intended to increase liability by creating a duty to the fleeing suspect, the very individual responsible for the risk to the public in the first place, is an absurd result. ¶33 In Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L.Ed 2d 686 (2007), the Supreme Court of the United States examined whether a law enforcement officer violated a motorist's Fourth Amendment right against unreasonable seizure when the officer terminated the car chase by forcing the motorist off the road. Though the Court in Harris was examining a different question, its analysis highlights the important differences between bystanders to a police pursuit and the subjects of the pursuit. The Court stated: But wait, says respondent: Couldn't the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas [the officer's] action--ramming respondent off the road--was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. …. [W]e are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Harris, 550 U.S. 372 at 385-86 (emphasis added). ¶34 Every motorist in the state of Oklahoma has an affirmative duty to stop their vehicle when directed to do so by a law enforcement officer.9 By fleeing from law enforcement, it is the suspect who's unlawful and dangerous actions necessitate pursuit in the first place. It would be absurd to conclude that law enforcement officers, out of concern for the safety of a fleeing suspect, must cease pursuit of that individual or risk possible civil liability to the suspect. Jackson v. Oliver, 514 N.W.2d 195, 197 (Mich. App. 1994). ¶35 For similar reasons, the Court of Civil Appeals' application of Carl v. City of Overland Park, Kan., 65 F.3d 866 (10th Cir. 1995) was erroneous. In City of Overland Park, the Tenth Circuit Court of Appeals, applying Kansas substantive law, determined that specific, mandatory guidelines in a police department's policy governing vehicle pursuits created a special duty of care to a fleeing suspect. 65 F.3d at 869. In this cause, the Court of Civil Appeals determined that the City's police department did not have similar mandatory guidelines, and so no duty of care was created. However, the Court of Civil Appeals left open the possibility that were such guidelines in place, a duty of care might be created. We disagree. ¶36 In deciding City of Overland Park, the Tenth Circuit Court of Appeals relied upon existing Kansas precedent stating: "[w]here the police are subject to guidelines or owe a specific duty to an individual, … the police owe a special duty accordingly." Fudge v. City of Kansas City, 720 P.2d 1093, 1098 (Kan. 1986) (Superseded by statute as stated in Woodruff v. City of Ottawa, 951 P.2d 953 (Kan. 1997)). Oklahoma does not have an analogous precedent, and we decline to adopt the rule in City of Overland Park. Our decision is in keeping with the majority of other states which have determined law enforcement officers owe no duty to a fleeing suspect, statutorily created or otherwise. CONCLUSION ¶37 Today, this Court reaffirms its decision in State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1, that negligent performance of a law enforcement function is not shielded from immunity under the GTCA. The provisions of 51 O.S. §155 do not immunize the State or its political subdivisions for the actions taken by their law enforcement officers engaged in police pursuits. This Court also determines that the law enforcement officers of the State and its political subdivisions engaged in a police pursuit owe no duty of care to the fleeing suspect. ¶38 Though the district court's dismissal of the County on the grounds of immunity was based upon an erroneous legal conclusion, and therefore its refusal to reconsider was an abuse of discretion, this cause is resolved by this Court's determination that neither the County's nor the City's law enforcement personnel owed a duty of care to Decedent. This cause is therefore remanded to the trial court with instructions to enter summary judgment in favor of the County. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS. ¶39 COLBERT, C.J., WINCHESTER, EDMONDSON, COMBS, and GURICH, JJ., concur. ¶40 KAUGER, J., concurs in result. ¶41 REIF, V.C.J., WATT and TAYLOR, JJ., concur in part and dissent in part. TAYLOR, J., concurring in part and dissenting in part: I concur that law enforcement officials owe no duty of care to fleeing suspects, and I dissent to the remainder of the opinion. FOOTNOTES 1 Smith dismissed defendant State of Oklahoma, ex rel. Oklahoma Highway Patrol, on August 30, 2012. 2 Though 51 O.S. §155 has been amended several times since decedent's death, the relevant provisions have remained unchanged. 3 Review of the trial court's dismissal for failure to state a claim upon which relief may be granted presents a question of law as to whether the petition is legally sufficient, and questions of law are reviewed de novo. Jordan v. Western Farmers Elec. Co-op., 2012 OK 94, ¶5, 290 P.3d 9 (distinguished on other grounds by Monge v. RG Petro-Machinery (Group) Co. Ltd., 701 F.3d 598 (10th Cir. 2012)); Hayes v. Eateries, Inc., 1995 OK 108, ¶2, 905 P.2d 778. 4 The Court has previously applied the same logic to reviewing a trial court's denial of a motion for new trial after a grant of summary judgment: A trial court's denial of a motion for new trial is reviewed for abuse of discretion. Where, as here, our assessment of the trial court's exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness. (Internal citations omitted). Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d 100. See also Head v. McCracken, 2004 OK 84, ¶2, 102 P.3d 670 ("the correctness of the trial court's new trial denial rests on the propriety of the earlier grant of summary judgment …. Thus, we must examine the correctness of the trial court's summary judgment grant…"); Evers v. FAF Overlake Associates, 2003 OK 53, ¶6, 77 P.3d 581 ("[i]n this case the propriety of the trial court's denial of the new trial motion rests on the correctness of the trial court's grant of summary judgment. Therefore, we must examine by de novo review the trial court's decision on summary judgment in order to determine whether the trial court abused its discretion in denying the new trial motion."). 5 "Negligent performance of a law enforcement function is not shielded from immunity under the GTCA." Gurich, 2010 OK 56, ¶11 (citing Salazar, 1999 OK 20, ¶27). 6 As this Court pointed out in Gurich, most states patterned their provisions concerning emergency vehicles after the Model Uniform Vehicle Code, although they vary considerably as to their degree of conformity with it. 2010 OK 56, ¶21. 7 Title 47 O.S. §11-106(E) is not the only section within Title 47 that contains this language. The same language is found within 47 O.S. §11-405(B), which provides: B. This section shall not be construed to require a peace officer operating a police vehicle properly and lawfully in response to a crime in progress to use audible signals nor shall this section operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the road or highway. 8 The Georgia statute is not identical to Oklahoma's, but does contain much of the operative language. OCGA §40-6-6 was amended in 1995 by the Georgia legislature to specifically provide for a "reckless disregard standard." City of Winder v. McDougald, 278 Ga. 866, 867, 583 S.E.2d 879, 880. The statute provides in pertinent part: (d)(1) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons. (2) When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer's pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer's decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation. OCGA §40-6-6(D)(1)-(2). 9 Title 47 O.S. §11-103 provides: No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic. Title 21 O.S. §540A(A) provides, in pertinent part: [a]ny operator of a motor vehicle who has received a visual and audible signal, a red light and a siren from a peace officer driving a motor vehicle showing the same to be an official police, sheriff, highway patrol or state game ranger vehicle directing the operator to bring the vehicle to a stop and who willfully increases the speed or extinguishes the lights of the vehicle in an attempt to elude such peace officer, or willfully attempts in any other manner to elude the peace officer, or who does elude such peace officer, is guilty of a misdemeanor.     Reif, V.C.J., concurring in part, dissenting in part: ¶1 Even though I concur to vacate the opinion of the Court of Civil Appeals, I dissent from the disposition of this case reached by the majority. I would resolve the issues of duty and liability in this case based on the privilege set forth in 47 O.S.2011, § 11-106. See State v. Gurich, 2010 OK 56, dissent ¶¶ 1-11, 238 P.3d 1, 8-10 (dissenting opinion by Reif, J., with whom Taylor, V.C.J. and Hargrave, J., join). Briefly, the reason the pursuit in this case gave rise to no liability is that the pursuing officers acted completely within the legal privilege to pursue violators created in § 11-106. Accordingly, I would affirm the trial court's dismissals of the City of Stillwater and the Board of County Commissioners of Payne County on that basis and not extend the teachings of the Gurich case to injuries sustained by the fleeing violator. ¶2 By its express terms, section 11-106 extends a "privilege" to the driver of an emergency vehicle to pursue violators and operate the vehicle in ways that would otherwise violate certain traffic laws. The duty imposed upon the driver of the emergency vehicle when exercising the privilege is "to drive with due regard for the safety of all persons." Id. at 11-106(E) (emphasis added). While the privilege does not protect the driver "from the consequences of reckless disregard for the safety of others," this provision, like every other provision in § 11-106, addresses the operation of the emergency vehicle, not the decision to commence or the decision to continue the pursuit. Id. ¶3 A reading of the entire text of § 11-106 indicates that "a driver who maintains control of the emergency vehicle and does not harm anyone with the vehicle, remains within the privilege, breaches no duty, and commits no tort as a matter of law." Gurich, 2010 OK 56, dissent ¶ 5, 238 P.3d at 9. Very simply put, "once a pursuit is commenced, section 11-106 governs the action of the pursuing officer . . . and its continuation in compliance with section 11-106 creates nothing more than a condition for harm caused by the violator being pursued." Id. at dissent ¶ 9, 238 P.3d at 9 (emphasis omitted). This includes self-inflicted harm as in the case at hand. ¶4 Unlike the majority, I do find the statutory duty imposed upon the pursuing officer "to drive with due regard for the safety of all persons" to extend to the fleeing violator. In a proper case, breach of that duty in the operation of the emergency vehicle can visit liability on the governmental entities employing the pursuing officers. For example, losing control of the emergency vehicle and crashing into the vehicle of the fleeing violator who has stopped could take the officer outside of the privilege and give rise to liability under the Governmental Tort Claims Act. ¶5 This was not what happened in the case at hand, however. In the case at hand, the fleeing violator failed to negotiate a turn at a T-intersection and ran off the road untouched and unimpeded by any pursuing emergency vehicles. Because the pursuit of the deceased by the city and county law enforcement officers complied with 47 O.S.2011, § 11-106 in every material regard, the privilege given by this statute shields both the City of Stillwater and the Board of County Commissioners of Payne County from liability under the Governmental Tort Claims Act.     WATT, J. concurring in part and dissenting in part: ¶1 I agree that, under the unique facts presented in this case, the respondents/appellees have no liability for the injury or death resulting from the high-speed chase instituted here. Nevertheless, I cannot go so far as to extend blanket immunity to all governmental employees and entities where the fleeing individual, allegedly involved in criminal activity, is injured. To do so, would require that we overrule our opinion in State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1. It would also put me in the position of ignoring the precise language of 47 O.S. 2011 §11-106(E) extending protection to "all persons" and to "others" for a pursuit where an officer acts with "reckless disregard" for their safety. The Teachings of State ex rel. Oklahoma Dept. of Public Safety v. Gurich ¶2 Under Gurich, unless there is no evidence from which a jury could find a causal nexus between the pursuing officer's decision to give chase and remain in pursuit of the fleeing driver, the question of whether the officer acted with reckless disregard remains one of fact for the trier of fact.1 The last paragraph of the same opinion contains the following sentence: The exemptions from liability found in the GTCA do not apply to a law enforcement officer's decision to pursue or maintain pursuit of a fleeing driver. The teachings of Gurich are that: the issue of liability remains a question of fact absent no evidence to the contrary; the Governmental Tort Claims Act's protections do not extend themselves to a "law enforcement officer's decision to pursue or maintain pursuit of a fleeing driver;" and the standard to judge the officer's behavior by is the "reckless disregard" for the safety of others. Despite those teachings, the majority holds "that Law Enforcement Officers engaged in police pursuits do not owe a duty of care to the suspect being pursued."2 I cannot go so far. I would extend the teachings enunciated in Gurich to situations involving fleeing citizens allowing the trier of fact to consider the issue of liability on a case-by-case basis. Legislature's Utilization of Terms "safety of all persons" and "safety of others" in 47 O.S. 2011 §11-106(E). ¶3 The primary goal of statutory interpretation is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed by the statutory language.3 Intent is ascertained from the whole act in light of its general purpose and objective4 considering relevant provisions together to give full force and effect to each.5 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.6 Statutes are interpreted to attain that purpose and end.7 Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.8 If the language is plain and clearly expresses the legislative will, further inquiry is unnecessary.9 ¶4 The language of 47 O.S. 2011 §11-106 is not so clear as to be beyond interpretation. It provides that immunity may extend to drivers of authorized emergency vehicles "when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law . . . subject to the conditions stated herein." [Emphasis provided.] Subsection E of §11-106 provides, in mandatory language,10 that its provisions "shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others." [Emphasis provided.] ¶5 In referring to which persons officers were to drive with due regard for, the Legislature utilized the inclusive term "all." "All" is generally understood to mean nothing less than "every."11 In the same sentence of subsection (E), the Legislature stressed that such personnel would not be protected from reckless disregard of "others," a term characterized as relating to the general public12 or anyone.13 ¶6 I do not consider myself as part of a department of government acting as a super-legislature with the power to overrule the Oklahoma Legislature's expressed intent. Neither do I assume that the Legislature does vain and useless acts in promulgating law.14 I most certainly do not believe our Legislature to be inferior in expressing itself to any other legislative body. Therefore, I can only presume that, had the Oklahoma Legislature intended to exclude, in all circumstances, individuals from protection when engaged in criminal activity at the time of their injury while involved in a high-speed chase, it would have done so expressly. The makers of laws in Mississippi have done precisely that with the enactment of the Mississippi Code providing in pertinent part: (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: . . . (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury . . ." CONCLUSION ¶7 I do not believe that there is any evidence of reckless disregard for the safety of the alleged criminal here or liability for the individual's injury. I do believe that, absent the Legislature's exclusion rather than inclusion of "all persons" and "others" in the protections authorized under Oklahoma's statutory scheme, no blanket rule will be applicable to determine liability. Rather, the causes must be reviewed on a case-by-case basis to determine whether the facts may authorize recovery by a party allegedly involved in criminal activity and injured in a high-speed chase. Here, I concur in the majority's determination of no liability under the facts presented but dissent from the blanket immunity given officials engaged in high-speed chases because the legislative language does not support such a result. FOOTNOTES 1 State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56, ¶¶ 17 and 24, 238 P.3d 1. 2 Because Vice Chief Justice Reif's position as it relates to a fleeing violator, in his concurring in part and dissenting in part opinion, also adopts the position of the majority, I cannot join therein. 3 White v. Lim, 2009 OK 79, ¶12, 224 P.3d 679; Head v. McCracken, 2004 OK 84, ¶13, 102 P.3d 670; Balfour v. Nelson, 1994 OK 149, ¶8, 890 P.2d 91, 39 A.L.R.5th 935. 4 Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882; McSorley v. Hertz Corp., 1994 OK 120, ¶6, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶8, 832 P.2d 834. 5 Haney v. State, 1993 OK 41, ¶5, 850 P.2d 1087; Public Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶8, 842 P.2d 750. 6 Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082; Fuller v. Odom, 1987 OK 64, ¶4, 741 P.2d 449; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132. 7 Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995); Wilson v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶5, 594 P.2d 1210. 8 Haggard v. Haggard, 1998 OK 124, ¶1, 975 P.2d 439; Price v. Southwestern Bell Tel. Co., 1991 OK 50 ¶7, 812 P.2d 1335. 9 White v. Lim, see note 3, supra; Rout v. Crescent Public Works Auth., 1994 OK 85, ¶10, 878 P.2d 1045. 10 "Shall" is ordinarily interpreted as implying a command or mandate and "may" generally denotes permissive or discretional authority. Nevertheless, it there are situations where "shall" may be interpreted as directory rather than mandatory. Howard v. Zimmer, Inc., 2013 OK 17, fn. 24, 299 P.3d 463; State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶62, 264 P.3d 1197; Woods Development Co. v. Meurer Abstract & Title Co., 1985 OK 106, ¶11, 712 P.2d 30. 11 See, JPMorgan Chase Bank v. Specialty Restaurants, Inc., 2010 OK 65, ¶16, 243 P.3d 8; State ex rel. Porter v. Ferrell, 1998 OK 41, ¶9, 959 P.2d 576. 12 See, Franks v. Independent Production Co., 2004 WY 97, 93 P.3d 484. 13 Amica Mut. Ins. Co. v. Morowitz, 388 Fed.Appx. 874 (Fla. 2010). 14 Surety Bail Bondsmen of Oklahoma, Inc. v. Insurance Comm'r, 2010 OK 73, ¶26, 243 P.3d 1177; Johnson v. City of Woodward, 2001 OK 85, ¶14, 38 P.3d 218.      

91e1e09b-18ae-4eb7-8345-18a31f53073a

Brewer v. City of Seminole

oklahoma

Oklahoma Supreme Court

BREWER v. CITY OF SEMINOLE2014 OK 41Case Number: 112292Decided: 05/13/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RENEE BREWER, Plaintiff/Appellant, v. CITY OF SEMINOLE, Defendant/Appellee. CERTIFIED QUESTIONS OF LAW FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ¶0 Plaintiff, a probationary police trainee, filed suit in the United States District Court for the Eastern District of Oklahoma. Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611, the Honorable James H. Payne, United States District Judge for the Eastern District of Oklahoma, certified three questions to this Court. We reformulate question one and answer questions one and two in the negative. Question three is not answered because it is dependent on an affirmative answer to question two. CERTIFIED QUESTION ONE REFORMULATED AND ANSWERED; CERTIFIED QUESTION TWO ANSWERED; ANSWER TO CERTIFIED QUESTION THREE DECLINED. Margaret McMorrow-Love and Matthew J. Love, The Love Law Firm, Oklahoma City, Oklahoma, for Defendant.1 TAYLOR, J. ¶1 The United States Court of District Court for the Eastern District of Oklahoma certified the following questions to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611. 1. Whether a probationary police officer in a municipality that has entered into a Collective Bargaining Agreement ("CBA") with a recognized bargaining agent under the Fire and Police Arbitration Act, OKLA. STAT. tit. 11, § 51-101 ("FPAA"), who is excluded by the terms of the CBA from having access to the grievance/arbitration process contained in the CBA in connection with the termination of his/her employment due to his/her probationary status, but who was also a member of the Police Pension and Retirement Systems, OKLA. STAT. tit. 11, § 50-101 et seq., at the time of the termination of his employment, has a right to be terminated only for cause by OKLA. STAT. tit. 11, § 50-123(B) and, thus, is entitled to due process in connection with the termination of his/her employment? 2. Whether the probationary police officer under the above scenario has a statutory right to a hearing before a Police Pension Review Board as provided for in OKLA. STAT. tit. 11, § 50-123(A)?1 3. If a probationary police officer has a statutory right to a hearing before a Police Pension Board of Review under by [sic] OKLA. STAT. tit. 11, § 50-123, must the officer request a hearing and when must the officer request a hearing, or must the municipality offer a hearing and when must the municipality offer a hearing? 1 Compare city of Coweta v. Doughten, 2011 OK Civ App 113, 264 P.3d 135 (Division Four) and White v. City of Del City, 2012 OK CIV APP 5, 270 P.3d 205 (Division Two). The United States District Court did not forward any record to this Court but provided a factual background in the certifying order. ¶2 We reformulate question one because answering it as written would require us to apply federal law. See 20 O.S.2011, § 1604(A)(3). Questions two and three remain unchanged. We reformulate question one as: 1. Whether title 11, section 50-123(B) of the 2011 Oklahoma Statutes provides a right to a probationary police trainee to be terminated only for cause if she is a member of the Police Pension and Retirement System as defined by title 11, section 50-101(6) of the Oklahoma Statutes and is employed by a municipality that has entered into a Collective Bargaining Agreement (CBA) with a recognized bargaining agent under the Fire and Police Arbitration Act, 11 O.S.2011, §§51-101 to 51-113, but, due to her probationary status, is excluded by the terms of the CBA from having access to the arbitration and grievance process contained in the CBA in connection with the termination of her employment. ¶3 We answer questions one and two in the negative. Because question three is dependent on an affirmative answer to question two, we decline to answer question three. I. FACTUAL BACKGROUND AS PROVIDED BY THE CERTIFYING COURT ¶4 The plaintiff Renee Brewer (Brewer) was employed by the defendant City of Seminole (Seminole) from July 9, 2011, until January 4, 2012, when she was involuntarily terminated. At the time of her termination, Brewer was classified as a probationary police trainee; she was not covered by the terms of the collective bargaining agreement (CBA) between Seminole and the Fraternal Order of Police, Lodge No. 138;2 and she was a member of the Oklahoma Police Pension and Retirement System (OPPRS), 11 O.S.2011, §§ 50-101 to 50-136.8. ¶5 Brewer filed an action in the United States District Court for the Eastern District of Oklahoma, asserting in part that she had a property interest in continued employment as a police trainee because she could only be terminated from her employment "for cause." Brewer alleged that she requested a hearing which Seminole denied. II. BRIEFS ¶6 On November 6, 2013, we ordered the parties to file simultaneous briefs addressing only the issues raised by the certified questions. Brewer's argument is as follows. Title 11, section 50-123(A) provides: "No member [of OPPRS] may be discharged except for cause." Under section 50-101(6), a member includes "any person hired by a participating municipality who is undergoing police training to become a permanent police officer of the municipality." Because the definition of member includes probationary police trainees and Brewer is a member of OPPRS, she cannot be fired except for cause. ¶7 Seminole's argument is as follows. The legislature never intended to grant probationary employees the same employment rights as permanent employees as evidenced by the Fire and Police Arbitration Act (FPAA), 11 O.S.2011, §§ 51-101 to 51-113, and OPPRS. Section 50-123 does not apply when a municipality has entered into a collective bargaining agreement. Holding that a probationary employee can be terminated only for cause would reach the absurd results that a probationary employee is getting a review before a board that a municipality is exempt from establishing, that a probationary employee is entitled to more protections than a unionized employee, and that it would defeat the purpose of probationary status if section 50-123(B) applies to probationary employees. III. ANALYSIS ¶8 This Court's recent decision in City of Jenks v. Stone, 2014 OK 11, 321 P.3d 179, is dispositive of certified questions one and two now before us. Like the probationary police trainee in City of Jenks, Brewer was classified as a probationary police trainee at the time of her discharge; she was a member of OPPRS; and she asserted she could only be terminated for cause. Id. ¶ 4, 321 P.3d at 181. Also similar to the probationary police trainee in City of Jenks, Brewer alleged that she requested a hearing before a municipal review board pursuant to title 11, section 50-123(B)3 which the municipality denied. Id. ¶ 5, 321 P.3d at 181. ¶9 In City of Jenks, this Court held that title 11, section 50-123(B) does not provide a probationary police trainee, even though a member of OPPRS, any statutory rights in his employment, including a right to be terminated only for cause or a right to a post-termination hearing before a board of review. Our decision was not dependent on Jenks entering into a collective bargaining agreement with its permanent police officers pursuant to FPAA. ¶10 Pursuant to City of Jenks, we answer question one in the negative. Title 11, section 50-123(B) of the Oklahoma Statutes does not provide a right to a probationary police trainee to be terminated only for cause. Pursuant to City of Jenks, we answer question two in the negative. Title 11, section 50-123(B) of the Oklahoma Statutes does not afford a probationary police trainee the right to a post-termination hearing. Because question three is dependent on question two being answered in the affirmative, we decline to answer question three. CERTIFIED QUESTION ONE REFORMULATED AND ANSWERED; CERTIFIED QUESTION TWO ANSWERED; ANSWER TO CERTIFIED QUESTION THREE DECLINED. Concur: Colbert, C.J.; Reif, V.C.J.; and Watt, Winchester, Edmondson, Taylor, Combs, and Gurich, JJ. Concurs in Result: Kauger, J. FOOTNOTES 1 Only those attorneys who have complied with Rule 1.5(a) of the Oklahoma Supreme Court Rules, 12 O.S.2011, ch. 15, app. 1, are listed on this opinion. 2 This statement is inconsistent with certified question one which states that Brewer was excluded by the terms of the CBA from having access to the grievance and arbitration process contained in the CBA. It is unclear whether the terms of the CBA exclude Brewer from coverage or cover Brewer but deny her access to the grievance and arbitration process. However, the discrepancy is not material to our decision. 3 Title 11, section 50-123 of the Oklahoma Statute provides: A. The governing body of every participating municipality, except municipalities which have provided for a civil service board of review or merit board, or have negotiated a contract covering discharge with their members to hear such appeals, shall establish a board of review to hear appeals concerning the discharge of members. . . . B. No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided. Appeals from decisions of said board of review may be taken in the manner provided for in this article, provided the provisions of this section relating to the board of review and discharge shall not apply to any municipality which has heretofore or hereinafter established by its charter civil service or merit system pertaining to the appointment and discharge of members and an independent board or commission having authority to hear actions involving the discharge of members.

9b213985-db12-4c86-9774-9c0f13e14da5

Sinor's Bay Marina, LLC v. Wagoner County Rural Water Dist. No. 2

oklahoma

Oklahoma Supreme Court

SINOR'S LONG BAY MARINA, LLC v. WAGONER CNTY. RURAL WATER DIST. NO. 22014 OK 43Case Number: 111317; Cons. w/111387Decided: 05/27/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SINOR'S LONG BAY MARINA, LLC, PAULA GIBSON AND LARRY GIBSON, Plaintiffs/Appellees, v. WAGONER COUNTY RURAL WATER DISTRICT NO. 2, Defendant/Appellant. APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY HONORABLE DARRELL G. SHEPHERD ¶0 Two customers of Wagoner County Rural Water District No. 2 contested the rate charged for providing water to their respective recreational vehicle parks. The customers complained they were charged more for water service than other businesses. They contended this practice discriminated against their recreational park businesses and violated the Oklahoma Antitrust Reform Act, 79 O.S.2011, §§ 201-212. Over the objection of the District, the trial court submitted customers' antitrust claim to a jury who found in favor of the customers. Both customers and the District filed appeals from the judgment entered on the jury verdict. This Court retained these appeals, because a rural water district's liability for allegedly discriminatory rates is an issue of statewide public concern. Upon review, we hold (1) the Oklahoma Antitrust Reform Act does not apply to rates charged by a rural water district, and (2) a customer's relief to challenge a rate is to seek review by the water district and appeal to district court from any adverse decision by the district of such grievance. JUDGMENT ON THE JURY VERDICT REVERSED; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. James C. Milton, Bryan J. Nowlin, and Travis Cushman, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for Appellees. Gerald F. Pignato, S. Corey Stone, and Erin J. Rooney, Pignato, Cooper, Kolker & Roberson, P.C., Oklahoma City, Oklahoma, for Appellant. REIF, V.C.J.: ¶1 This case concerns the rate charged by Wagoner County Rural Water District No. 2 for water service provided to recreational vehicle parks within the District. In addition to the standard tap rate that every business is charged, the rate charged recreational vehicle parks was also based on the number of RV hook-ups provided by the park. ¶2 The owners of two recreational vehicle parks, Sinor's Long Bay Marina, LLC, and Paula and Larry Gibson, alleged this is discrimination in pricing that is forbidden by the Oklahoma Antitrust Reform Act (Antitrust Act), 79 O.S.2011, §§ 201-212. The District's consistent response has been that rural water districts are not subject to the Antitrust Act for the rates set pursuant to the Rural Water, Sewer, Gas and Solid Waste Management Districts Act (Rural Water Act), 82 O.S.2011, §§ 1324.1-1324.50. For the reasons that follow, we hold (1) the Antitrust Act does not apply to rates set by a rural water district and (2) the Rural Water Act contemplates that a customer grievance over rates be decided first by the water district board subject to appellate review by the district court. ¶3 On its face, the Antitrust Act does not apply to all pricing activity, but only the pricing activity of a party that meets the definition of "person" as set forth in section 202(3) of the Act. This section expressly excludes "the State of Oklahoma, its departments and its administrative agencies" from the definition of person. This exclusion of the State and its agencies from the definition of person has only two exceptions - the Grand River Dam Authority and the Oklahoma Municipal Power Authority. In section 1324.6(6) of the Rural Water Act, the Legislature provided, in pertinent part, that "[a water] district shall be a body politic and corporate and an agency and legally constituted authority of the State of Oklahoma for the public purposes set forth in [the Rural Water Act]." (emphasis added). Clearly, a water district, being a State agency, is not a "person" under the Antitrust Act. ¶4 In section 1324.10(10) of the Rural Water Act, a water district is granted power "to [f]ix, regulate and collect rates, fees rents or other charges for water . . . and any other facilities, supplies, equipment or services furnished by the district." This section further provides that "Said rates shall be just, reasonable and nondiscriminatory." (Emphasis added). ¶5 Under section 1324.11(C), the district's board of directors can review and adjust rates "as deemed necessary." In section 1324.10(11) of the Rural Water Act the district is further authorized "to [d]o and perform all acts and things, and to have and exercise any and all powers as may be necessary, convenient or appropriate to effectuate the purposes for which the district was created." ¶6 The right of water district customers to be charged "nondiscriminatory" rates is granted by the Rural Water Act, not the Antitrust Act. A complaint by a customer that a rate was discriminatory would make review of the rate by the district "necessary, convenient and appropriate" within the authority granted in sections 1324.10(10) and 1324.11(C). The district's further powers to "regulate" and "adjust" rates evinces Legislative intent that the district decide such complaints in the first instance. Review and decision of a complaint of this nature by the district would be a quasi-judicial function; the water district's decision would, in turn, be subject to judicial review by appeal to district court under 12 O.S.2011, § 951. ¶7 Legislative intent to make water district review of rate complaints a quasi-judicial function is also found in the Regional Water Distribution Act, 82 O.S.2011, §§ 1251-1288. This is a related statutory scheme. The chief difference between water districts created under this Act and those created under the Rural Water Act is that regional water districts are created by the interlocal agreement of the counties in which the regional district will operate. The districts created under each respective act otherwise have similar powers and purposes. Concerning the regional district's power to fix and regulate rates, the Legislature has allowed a "person aggrieved by the services furnished or rates charged" to present a grievance to the district and "to petition said grievance from the decision or action of said water district, to the district court." 82 O.S.2011, § 1273. ¶8 A water district created under the Rural Water Act is an agency and legally constituted authority of the State of Oklahoma, but cannot levy any taxes whatsoever or make any assessments on property. 82 O.S.2011, § 1324.6. It is a public nonprofit entity operated for the public purpose of developing and providing an adequate water supply to serve and meet the needs of rural residents within the territory of the district. § 1324.3. Its revenues are limited to rates, fees, rents and other charges for water and services which, in turn, must be devoted to payment of (1) operating and maintenance expenses, (2) principal and interest on outstanding obligations, and (3) reserves for improvements, retirement of indebtedness, new construction, depreciation and contingencies. § 1324.11. As a public nonprofit entity, its rates and revenues are not to exceed the amounts required for these purposes. Id. ¶9 The time and expense of litigation required to pursue remedies under the Antitrust Act are totally inconsistent with the nature of a rural water district and the general intent that it serve the rural residents within its territory "as may be necessary, convenient or appropriate." Grievance proceedings to challenge rates before the water district board, with judicial review by appeal to district court, better serve residents of a district and the public interest reflected in the Rural Water Act. ¶10 It was error for the trial court to grant any relief in this case under the Antitrust Act or on any basis unrelated to plaintiffs' complaint that the rate charged their respective water park businesses was discriminatory and in violation of section 1324.10(10). However, the record created in pursuit of that relief is sufficient for the trial court to conduct judicial review of the water district's denial of relief to plaintiffs on this complaint. It is also sufficient for the trial court to fashion corrective relief, such as adjusting the rate and ordering a partial refund, in the event the trial court determines the challenged rate is discriminatory. ¶11 Based upon the foregoing considerations, the trial court's judgment on the jury verdict is reversed, the injunctive relief is vacated and this case is remanded to the trial court for further proceeding consistent with this opinion. JUDGMENT ON THE JURY VERDICT REVERSED; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ¶12 COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, and GURICH, JJ., concur. ¶13 KAUGER, J., concurs in result.

0b492fb3-1701-4266-964b-884ef7ecb5eb

Porter v. Oklahoma Farm Bureau Mutual Ins. Co.

oklahoma

Oklahoma Supreme Court

PORTER v. OKLAHOMA FARM BUREAU MUTUAL INSUR. CO.2014 OK 50Case Number: 111218Decided: 06/17/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JUSTIN and BRANDY PORTER, individually and on behalf of all others similarly situated, Plaintiffs/Appellants, v. OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant/Appellee. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Sewage backed up into and damaged Plaintiffs' home. Defendant insurer denied coverage for Plaintiffs' loss. Plaintiffs sued in the District Court in Rogers County, Oklahoma, for breach of contract, bad faith, and fraud, individually and on behalf of all others similarly situated. Plaintiffs alleged that the policy was ambiguous because it included conflicting provisions for loss caused by water damage and that they were entitled to coverage under Andres v. Okla. Farm Bureau Mut. Insur. Co., 2009 OK CIV APP 97, 227 P.3d 1102, cert. denied, (Nov. 23, 2009). The district court granted Defendant's motion to dismiss. Plaintiffs appealed, and the Court of Civil Appeals affirmed. This Court granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. Donald E. Smolen II and Laura M. Lauth, Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plaintiffs/Appellants. Tim D. Cain and Stephen M. Coates, Wilson, Cain & Acquaviva, Tulsa, Oklahoma, for Defendant/Appellee. TAYLOR, J. ¶1 The issue before this Court is whether the district court erred in granting Defendant's motion to dismiss. The resolution of this issue turns on two questions that Plaintiffs preserved in their petition for certiorari. The first question is whether Plaintiffs' homeowners insurance policy is ambiguous when the policy covers loss to personal property "caused by . . . accidental discharge or overflow of water from within a plumbing . . . system" (the accidental-discharge-coverage provision) and excludes coverage for loss to real and personal property "resulting directly or indirectly from . . . water which backs up through sewers or drains" (the sewer-or-drain-backup exclusion). If the policy is ambiguous, the second question is whether the doctrine of reasonable expectations requires the ambiguity to be construed in favor of coverage. ¶2 We find that the district court erred in dismissing the petition in its entirety when the allegations taken as true stated a claim for breach of contract. We previously granted certiorari. I. FACTS AND PROCEEDINGS ¶3 The following facts are undisputed. On November 14, 2009, sewage entered into and damaged the home of Justin and Brandy Porter (Plaintiffs). At the time, Plaintiffs' home was insured by Oklahoma Farm Bureau Mutual Insurance Company (Defendant) under a "Homeowners Special Coverage Policy" (the policy). Plaintiffs initiated a claim with Defendant for their loss, which Defendant denied in a letter dated November 18, 2009 (the denial letter). ¶4 On February 12, 2010, Plaintiffs filed a petition in the district court for breach of contract and breach of the duty of good faith and fair dealing. Plaintiffs argued that the district court should follow Andres v. Oklahoma Farm Bureau Mutual Insurance Co., 2009 OK CIV APP 97, 227 P.3d 1102, cert. denied, (Nov. 23, 2009) to find that the policy was ambiguous because it contained conflicting provisions on loss caused by water damage1 and that the doctrine of reasonable expectations required the ambiguity to be construed in favor of coverage. Plaintiffs also argued that Defendant committed bad faith when Defendant wrote a policy that both includes and excludes a named peril and then denied Plaintiffs coverage under the policy. ¶5 Plaintiffs amended their petition to bring classwide claims on behalf of others similarly situated. Plaintiffs amended their petition a second time to allege "breach of the implied covenant of good faith and fair dealing and/or fraud," individually and classwide. Plaintiffs' motion for leave to file a second amended petition did not address an individual or class-action fraud claim.2 ¶6 Defendant filed a motion to dismiss the class-action claims and the fraud claim for failure to state a claim upon which relief can be granted. Defendant subsequently stated that the motion to dismiss "does not address any other claims" and that "a dispositive motion challenging the merits of Plaintiffs' individual breach of contract and bad faith claims [would] likely be filed in the future." The district court, however, dismissed all claims.3 The district court found that (1) there was no dispute of material fact, (2) the only potential ambiguity involved coverage for loss to personal property, (3) Plaintiffs failed to allege any claim with respect to personal property when all their claims regarded damage to their home, and (4) the policy was unambiguous as to coverage for loss to real property and clearly excluded coverage for loss to Plaintiffs' real property. ¶7 The district court erred in finding that the material facts were not in dispute. The parties disputed the source of Plaintiffs' loss. Plaintiffs' second amended petition alleged that their "home was damaged by sewage and waste water which overflowed from their plumbing lines."4 Defendant's motion to dismiss a portion of the claims stated that the cause of damage was "a backup of sewage into Plaintiffs' dwelling." The denial letter contended that the cause of the loss was a severed sewer line located off Plaintiffs' premises.5 ¶8 Plaintiffs appealed. The Court of Civil Appeals (the COCA) treated the dismissal as a summary judgment and affirmed the district court. The COCA found that (1) there was no dispute of material fact, (2) there was no ambiguity in the policy as to coverage for loss to real and personal property, (3) the record included allegations of loss to personal property, and (4) the policy unambiguously and expressly excluded coverage for the type of loss that occurred to Plaintiffs' real and personal property. This Court previously granted the writ of certiorari. II. STANDARD OF REVIEW ¶9 This Court reviews a trial court's judgment dismissing a petition de novo. Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157. "When evaluating a motion to dismiss, the court examines only the controlling law, not the facts. Thus, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences that can be drawn from them. Motions to dismiss are generally disfavored . . . ." Id. "A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief." Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208-09. We review the motion to dismiss under this standard. III. THE RELEVANT POLICY PROVISIONS ¶10 Plaintiffs allege that the sewer-or-drain-backup exclusion conflicts with the accidental-discharge-coverage provision, creating an ambiguity that must be resolved in favor of coverage under the doctrine of reasonable expectations. The relevant provisions of Plaintiffs' policy are provided below. Perils We Insure Against We cover direct loss to property covered under Dwelling - Coverage A, Other Structures - Coverage B except for losses excluded in this Section. We cover direct loss to property insured under Personal Property - Coverage C caused by: . . . . 14. Accidental Discharge or Overflow of Water or Steam from within a plumbing, heating, air conditioning or automatic fire protection sprinkler system or domestic appliance. . . . . This peril does not apply to loss: . . . . e. on the residence premises caused by accidental discharge or overflow which occurs off the residential premises. . . . . Exclusions - Losses We Do Not Cover Under Dwelling - Coverage A, Other Structures - Coverage B, and Personal Property - Coverage C, we do not cover loss resulting directly or indirectly from: . . . . 3. water damage meaning: . . . . b. water which backs up through sewers or drains. . . . (Emphasis added.) ¶11 Plaintiffs urge this Court to interpret this policy language similar to Andres v. Oklahoma Farm Bureau Mutual Insurance Co., 2009 OK CIV APP 97, 227 P.3d 1102, cert. denied, (Nov. 23, 2009). Andres involved the same insurance company, the same exclusionary clause, a similar accidental-discharge-coverage provision, and a claim for similar loss. The Andres court agreed that a sewer line is part of the plumbing system of a house, id. ¶ 11, 227 P.3d at 1106, and found that a reasonable person in the insured's position would believe that the accidental-discharge-coverage provision covered raw sewage damage. Id. ¶ 14, 227 P.3d at 1106. The Andres court determined that the exclusion of raw sewage damage conflicted with the accidental-discharge-coverage provision and created an ambiguity. Id. ¶ 14, 227 P.3d at 1106. The Andres court concluded that the policy covered the overflow of raw sewage and that the plaintiffs were entitled to summary judgment as a matter of law. Id. IV. BREACH OF CONTRACT ¶12 Oklahoma law involving the interpretation of insurance contracts is well settled. "Parties are at liberty to contract for insurance to cover such risks as they see fit and they are bound by terms of the contract," and "courts are not at liberty to rewrite the terms of an insurance contract." Cranfill v. Aetna Life Ins. Co., 2002 OK 26, ¶ 5, 49 P.3d 703, 707. "In Oklahoma, the cardinal rule in contract interpretation is to determine and give effect to the intent of the parties." In re Kaufman, 2001 OK 88, ¶ 13, 37 P.3d 845, 853. When policy provisions are clear, consistent, and unambiguous, we look to the plain and ordinary meaning of the policy language to determine and give effect to the parties' intent. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376-77; 15 O.S.2011, §§ 152, 154, 160. ¶13 When the language is susceptible to two constructions before applying the rules of construction, the policy is ambiguous. Id. However, "neither forced nor strained construction will be indulged, nor will any provision be taken out of context and narrowly focused upon to create and then construe an ambiguity so as to import a [more] favorable consideration to either party than that expressed in the contract." Id.; see 15 O.S.2011, § 157 ("The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others."). "Insurance contracts are contracts of adhesion," which are interpreted most strongly against the party that prepared the contract. Wilson v. Travelers Ins. Co., 1980 OK 9, ¶ 8, 605 P.2d 1327, 1329. We will not impose coverage if it is clear from the policy language that loss from a particular risk is not covered. BP Am., Inc. v. State Auto Prop. & Cas. Ins. Co., 2005 OK 65, ¶ 6, 148 P.3d 832, 835-36. ¶14 Plaintiffs' policy expressly provides distinct coverage for real and personal property. With regard to real property, the policy covers "direct loss" unless specifically excluded. As to personal property, the policy covers "direct loss" caused by specific perils only. One of these named perils is loss caused by accidental discharge or overflow of water from within a plumbing system (the accidental-discharge-coverage provision). ¶15 In contrast, the policy explicitly states that the policy exclusions apply indiscriminately to coverage for loss to both real and personal property. One of these exclusions is "loss resulting directly or indirectly from . . . water which backs up through sewers or drains" (the sewer-or-drain-backup exclusion). Thus, the accidental-discharge-coverage provision covers loss to personal property but does not apply to real property coverage. Instead, loss to real property caused by accidental discharge or overflow of water from within a plumbing system is covered under the general coverage provision for real property. The sewer-or-drain-backup exclusion excludes loss to both real and personal property resulting directly or indirectly from water which backs up through sewers or drains. ¶16 Here, Plaintiffs ask this Court to compare the accidental-discharge-coverage provision for personal property together with the sewer-or-drain-backup exclusion for real and personal property to find an ambiguity. Relying on Andres, Plaintiffs argue that a reasonable person in the insured's position reading the two provisions would find that the policy simultaneously includes and excludes coverage for raw sewage damage. Plaintiffs contend that the sewer-or-drain-backup exclusion nullifies the term "overflow" in the accidental-discharge-coverage provision because "[t]he only means of ingress and egress in a plumbing system are through drains and sewers," and, accordingly, a plumbing system can overflow only through sewers and drains. Plaintiffs urge that the only way to reconcile the accidental-discharge-coverage provision with the sewer-or-drain-backup exclusion is to limit the exclusion such that loss resulting from water which backs up through sewers and drains is excluded from coverage unless the water is discharged or overflows from within the covered plumbing system. ¶17 We reject Plaintiffs' argument that the two provisions must be read together when the policy clearly and unambiguously provides distinct coverage for real and personal property. To do as Plaintiffs ask would require this Court to rewrite the terms of the policy and strike out the language limiting the accidental-discharge-coverage provision to personal property loss only. We also reject Plaintiffs' argument that a plumbing system can overflow only through drains and sewers. We agree with Defendant that the term "overflow" acts on other words in the accidental-discharge-coverage provision, including the term "appliances." Appliances such as a hot water tank, an ice maker, a sink, or a bathtub may overflow and cause property loss without involving water backing up through a sewer or a drain.6 We cannot do as Plaintiffs request and take a policy provision out of context and then narrowly focus upon it to create and then construe an ambiguity to put Plaintiffs in a more advantageous situation than the one intended by the clear language in the contract. Thus, we find that the policy provisions at issue contain no ambiguity. ¶18 Plaintiffs also argue that the existence of cases in which other jurisdictions interpreted similar policy language and found coverage for loss caused by sewer or drain backup proves that reasonable minds could find conflicting interpretations of the policy at issue and that the policy is ambiguous.7 However, the mere existence of a split in authority does not render the policy provisions ambiguous. BP Am., Inc. v. State Auto Prop. & Cas. Ins. Co., 2005 OK 65, ¶ 6, 148 P.3d 832, 835-36. ¶19 Finding no ambiguity in the policy provisions at issue, we look to the plain and ordinary meaning of the policy language to determine whether Plaintiffs' loss is covered. The sewer-or-drain-backup exclusion modifies the coverage for loss to real and personal property by excluding any loss "resulting directly or indirectly from . . . water which backs up through sewers or drains." This is so even if the direct cause of the real or personal property loss is an overflow or discharge from within a plumbing system. The policy also modifies the coverage for loss to personal property by excluding loss caused by accidental discharge or overflow which occurs "off the residence premises." For example, if a city sewer line off an insured's property is cut, causing raw sewage and waste to back up into the sewer and ultimately overflow from an insured's toilets, the loss would be excluded under the policy. Specifically, an insured's real property loss would be excluded under the sewer-or-drain-backup exclusion because the loss resulted indirectly from a sewage backup. Similarly, an insured's personal property loss would be excluded under the sewer-or-drain-backup exclusion for the above reason. An insured's personal property loss would also be excluded under the off-premises exception to the accidental-discharge-coverage provision because the loss was caused by accidental discharge or overflow which occurred off the residence premises. ¶20 Here, Plaintiffs alleged real property loss only. Thus, Plaintiffs' loss is excluded from coverage if the loss resulted directly or indirectly from a sewage backup. However, we cannot complete the analysis and determine if Plaintiffs' loss is covered because the appellate record lacks a key fact. The parties dispute the source of Plaintiffs' loss, whether the plumbing system or the sewer. If the facts are as Plaintiffs allege--the source of the damage was the plumbing system--Plaintiffs' real property loss is covered under the general coverage provision for real property and is not excluded under the sewer-or-drain-backup exclusion. On the other hand, if the facts are as Defendant alleges--the source was the sewer line to Plaintiffs' property--Plaintiffs' real property loss is excluded under the sewer-or-drain-backup exclusion. We thus remand to the district court to determine the source of Plaintiffs' damage, specifically whether the source was Plaintiffs' plumbing system or the sewer line, as the denial letter contended. ¶21 We therefore find that the sewer-or-drain-backup exclusion does not conflict with the accidental-discharge-coverage provision to create an ambiguity to be resolved in favor of coverage. We decline to adopt the reasoning of the COCA, Division 4 in Andres. Finding no ambiguity in the policy, we need not address the doctrine of reasonable expectations.8 In conclusion, we find that the district court erred in dismissing the petition in its entirety when the allegations taken as true stated a claim for breach of contract. V. BAD FAITH ¶22 Although we find that the district court erred in dismissing Plaintiffs' breach of contract claim, we find it necessary to address Plaintiffs' misunderstanding of the law governing the duty of good faith and fair dealing owed by an insurer to its insured. This Court first recognized the tort of bad-faith breach of contract stemming from an insurer's implicit duty to deal fairly and act in good faith with its insured in Christian v. American Home Assurance Co., 1977 OK 141, ¶ 25, 577 P.2d 899, 904-05. The essence of the tort is the unreasonable, bad-faith conduct of the insurer. Manis v. Hartford Fire Ins. Co., 1984 OK 25, ¶ 6, 681 P.2d 760, 761. When adopting this tort, this Court recognized that because "there can be disagreements between insurer and insured on a variety of matters such as insurable interest, extent of coverage, cause of loss, amount of loss, or breach of policy conditions," the tort does not prevent the insurer from reasonably withholding payment or litigating a legitimate dispute. Christian, 1977 OK 141, ¶ 26, 577 P.2d at 905. ¶23 The decisive question is whether the insurer "had a good faith belief, at the time its performance was requested, that it had a justifiable reason for withholding payment under the policy." Buzzard v. McDanel, 1987 OK 28, ¶ 10, 736 P.2d 157, 159. It is not bad faith to withhold payment when there is a legitimate dispute concerning coverage or no conclusive precedential legal authority requiring coverage. Skinner v. John Deere Ins. Co., 2000 OK 18, ¶ 17, 998 P.2d 1219, 1223. In Skinner, we reasoned that because a COCA opinion not ordered for publication by this Court is persuasive only and has no precedential effect, it cannot constitute the law at the time of an insurer's alleged bad faith actions. Id. ¶ 19, 998 P.2d at 1223-24. ¶24 Here, Plaintiffs argue that Defendant committed bad faith by refusing to follow Andres v. Oklahoma Farm Bureau Mutual Insurance Co., 2009 OK CIV APP 97, 227 P.3d 1102, cert. denied, (Nov. 23, 2009). We disagree. Andres was not ordered for publication by this Court and constitutes persuasive authority only. Rule 1.200(c)(2), Oklahoma Supreme Court Rules, 12 O.S.2011, ch. 15, app. 1. Failure to follow a COCA opinion that did not constitute the law at the time of an insurer's resistance to payment does not constitute an act of bad faith. Skinner, 2000 OK 18, ¶ 19, 998 P.2d at 1223-24. Thus, the district court correctly dismissed Plaintiffs' claim that Defendant committed bad faith by refusing to follow Andres. VI. SUMMARY ¶25 In summary, we affirm in part, reverse in part, and remand with instructions. We agree with the district court's finding that Plaintiffs failed to allege a claim for loss to personal property. We affirm the district court's dismissal of the fraud claim. We also affirm the district court's dismissal of the bad faith claim based upon Defendant's refusal to follow Andres. We reverse the district court's dismissal of the breach of contract claim and remand with instructions to determine the source of the sewage backup. The district court dismissed the class-action breach of contract claim based on Plaintiffs' failure to state a claim for individual breach of contract. Because we reverse the district court's dismissal of the individual breach of contract claim, the district court must revisit the class-action breach of contract claim on remand. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. CONCUR: COLBERT, C.J.; REIF, V.C.J.; and KAUGER, EDMONDSON, TAYLOR, COMBS, and GURICH, JJ. CONCURS IN PART, DISSENTS IN PART: WINCHESTER, J. DISSENTS: WATT, J. FOOTNOTES 1 The parties do not dispute whether the term "water" in the policy includes raw sewage or waste water. 2 Plaintiffs had neither leave of court nor Defendant's written consent to amend their petition to include allegations of fraud. See 12 O.S.2011, § 2015(A). Additionally, Plaintiffs failed to state with particularity the circumstances constituting fraud when the only support Plaintiffs offer for their fraud claim is that at the time Defendant sold the policy to Plaintiffs, Defendant knew or should have known that the policy contained contradictory provisions. See 12 O.S.2011, § 2009(B). Thus, the district court correctly dismissed the fraud claim. 3 We find that the district court erred in dismissing all claims in the petition when the allegations taken as true stated a claim for breach of contract. See 12 O.S.2011, § 2012(B)(6). 4 The district court found that Plaintiffs had made a claim for loss to real property only, while the Court of Civil Appeals found that Plaintiffs had made a claim for loss to real and personal property. Plaintiffs first alleged personal-property loss in a brief submitted after the second amended petition was filed. Plaintiffs again alleged personal-property loss in their response to the motion to dismiss, citing their second amended petition. However, the second amended petition alleged only that Plaintiffs' "home" was damaged. We agree with the district court that Plaintiffs failed to state a claim for loss to their personal property. Plaintiffs had neither leave of court nor Defendant's written consent to amend their petition to include allegations of personal property loss. See id. § 2015(A). 5 The denial letter stated, in pertinent part: "Oklahoma Natural Gas had cut the sewer line to [Plaintiffs'] home about three weeks ago. This caused sewage to back up into [Plaintiffs'] home several times. ONG has since repaired the line and there have been no further instances of sewage backup since." The denial letter quoted the sewer-or-drain-backup exclusion and another exclusion to real property coverage not at issue here. The denial letter stated: "Because of these exclusions, [Defendant] will be unable to assist [Plaintiffs] with this loss." 6 Plaintiffs point out that the examples Defendant cites have drains, and that while a bathtub can overflow without water backing up through its drain if there is an obstruction outside of the drain, the reasonable interpretation of the policy cannot provide coverage based on whether the obstruction is inside or outside of the drain. However, Plaintiffs ignore the fact that while the appliances listed by Defendant have drains, the appliances are susceptible to overflowing without water backing up through drains. For example, a hot water tank may suffer a fracture and leak, an ice maker may overflow when too much water is dispersed into the ice trays, and a sink or a bathtub may overflow when one intentionally stops the drain in order to fill the sink or bathtub and then forgets to turn off the flow of water. Accordingly, we find Plaintiffs' counter-argument unconvincing. 7 Both parties cite cases from other jurisdictions interpreting similar policy provisions to support their respective positions. Our research does not reveal a clear majority position. Compare World Fire & Marine Ins. Co. v. Carolina Mills Distrib. Co., 169 F.2d 826 (8th Cir. 1948), with For Kids Only Child Dev. Ctr., Inc. v. Phila. Indem. Ins. Co., 260 S.W.3d 652 (Tex. App. 2008). 8 The doctrine of reasonable expectations "evolved as an interpretive tool to aid courts in discerning the intention of parties when the policy language is ambiguous or when an exclusion is 'masked by technical or obscure language' or 'hidden in a policy's provisions.'" Spears v. Shelter Mut. Ins. Co., 2003 OK 66, ¶ 6, 73 P.3d 865, 868 (quoting Max True Plastering Co. v. U.S. Fid. and Guar. Co., 1996 OK 28, ¶ 24, 912 P.2d 861, 870). Under the doctrine, Oklahoma courts "construing an ambiguity or uncertainty in an insurance policy" look to the objectively reasonable expectations of a person in the insured's position rather than to the drafter's intentions. Id.

3a27f70b-6035-4587-ad83-a0d6f02dd9ca

Rouse v. Grand River Dam Authority

oklahoma

Oklahoma Supreme Court

ROUSE v. GRAND RIVER DAM AUTHORITY2014 OK 39Case Number: 112058Decided: 05/13/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHESTER ROUSE, Plaintiff/Appellant,v.GRAND RIVER DAM AUTHORITY and DANIEL S. SULLIVAN, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF MAYS COUNTYHONORABLE TERRY H. McBRIDE ¶0 Discharged employee sued the Grand River Dam Authority and its chief executive officer alleging wrongful termination. The trial court dismissed the suit for failure to state a claim upon which relief could be granted, ruling (1) sovereign immunity barred employee's claim based on the federal Fair Labor Standards Act and (2) the Oklahoma Whistleblower Act provided employee's remedy for the alleged wrongful termination, not state tort law. Employee appealed and this Court retained the appeal. DISMISSAL AFFIRMED. James C. Thomas, William D. Thomas, THOMAS LAW FIRM PLC, Tulsa, Oklahoma, Attorneys for Plaintiff/Appellant,J. Heath Lighten, Grand River Dam Authority, Vinita, Oklahoma, Attorney for Defendants/Appellees. REIF, V.C.J.: ¶1 On February 25, 2013, Chester Rouse filed a wrongful termination suit against the Grand River Dam Authority (GRDA) and Daniel S. Sullivan. The petition alleged GRDA and Mr. Sullivan terminated Mr. Rouse on February 17, 2012, in retaliation for filing an overtime complaint under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 through § 219. Retaliation for filing such a complaint is forbidden by section 215(a)(3) and is actionable under section 216(b). Mr. Rouse also alleged the termination of his employment for filing this complaint violated Oklahoma public policy protecting whistleblowers who make external reports of unlawful activity by their employers. ¶2 GRDA and Mr. Sullivan filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion to dismiss argued (1) sovereign immunity barred suit against GRDA and Mr. Sullivan on the federal claim and (2) Mr. Rouse had a remedy under the Oklahoma Whistleblower Act and, therefore, a tort claim was not available to protect the public policy that encourages reports of unlawful activity by employers. ¶3 The trial court granted the motion to dismiss and Mr. Rouse appealed. We retained this appeal and, upon review, affirm the dismissal. ¶4 When reviewing a motion to dismiss for failure to state a claim, the allegations in the petition must be taken as true. Indiana National Bank v. State of Oklahoma Department of Human Services, 1994 OK 98, ¶ 3, 880 P.2d 371, 375. Applying this rule to the petition in the case at hand establishes certain dispositive facts that dictate Mr. Rouse has failed to state a claim upon which relief can be granted. ¶5 The first dispositive fact of consequence is Mr. Rouse's status as an employee of GRDA at the time he made the overtime complaint. The other dispositive facts concern GRDA's status, Mr. Sullivan's status and Mr. Sullivan's actions. ¶6 By statute, "employees of [GRDA] are both classified and unclassified state employees subject to the same benefits and restrictions applicable to all state agencies except as otherwise provided by statute." 82 O.S.2011, § 861A (emphasis added). This same statute also states "[GRDA] is a nonappropriated agency of the State of Oklahoma . . . subject to the laws of the state as they apply to state agencies except as specifically exempted by statute." Id. ¶7 The Legislature has expressly provided that "The Grand River Dam Authority shall be under the Merit System," 74 O.S.2011, § 840-5.7(A). The Oklahoma Whistleblower Act, 74 O.S.2011, § 840-2.5 applies to "any state employee" aggrieved pursuant to the Act, and provides for proceedings before the Merit Protection Commission to seek relief for an alleged violation of the Act. In fact, the Legislature has specially charged the Merit Protection Commission with responsibility to enforce the Whistleblower Act. 74 O.S.2011, § 840-2.6 Neither GRDA nor its employees are specifically exempted from the Whistleblower Act. ¶8 As a "state employee," Mr. Rouse's conduct in filing the overtime complaint was protected by § 840-2.5(B) (2) of the Act. This Court has previously held that the remedies and penalties provided by the Whistleblower Act are adequate to protect the public policy of encouraging state employees to report wrongdoing and, therefore, a tort claim for discharge in violation of public policy is not available to a discharged whistleblower employee. Shephard v. CompSource Oklahoma, 2009 OK 25, ¶ 12, 209 P.3d 288, 293. ¶9 As concerns GRDA's status for purposes of sovereign immunity, we observe that the statute creating GRDA states, in pertinent part, "[GRDA] shall be, and hereby is declared to be, a governmental agency of the State of Oklahoma, body politic and corporate, with powers of government . . ." 82 O.S.2011, § 861. This Court has previously held that GRDA's status as "a governmental agency of the State of Oklahoma" makes GRDA "a governmental entity intended to be encompassed within the protective cloak of [the Governmental Tort Claims Act]," including the Act's adoption of sovereign immunity. Mustain v. Grand River Dam Authority, 2003 OK 43, ¶ 20, 68 P.3d 991, 998. This protective cloak of sovereign immunity bars private actions in state courts against state agency employers under the FLSA. Freeman v. State ex rel. Department of Human Services, 2006 OK 71, ¶¶ 2 & 10, 145 P.3d 1078, 1080. ¶10 We are cognizant that federal courts have held that Congress may abrogate state sovereign immunity for the enforcement of certain claims under the FLSA. However, such abrogation is appropriate for equal pay claims where there is an equal protection interest under the 14th Amendment to the United States Constitution, but not for the enforcement of overtime claims. See Raper v. State of Iowa, 115 F.3d 623 (8th Cir. 1997) ¶11 In addition to asserting liability against GRDA, Mr. Rouse also contended that Mr. Sullivan individually is a proper defendant. The petition alleges that Mr. Sullivan was the "General Manager" and "Chief Executive Officer" of GRDA. Although not specifically naming Mr. Sullivan, a liberal reading of the petition reveals that Mr. Sullivan participated in and shared responsibility with GRDA for "a continuing course of retaliation [against Mr. Rouse] for making his complaint to the Department of Labor, Wage and Hour Division." ¶12 In addition, Mr. Rouse's first response to the Defendants' motion to dismiss identifies Mr. Sullivan as the "head of GRDA" and "the person who fired [Mr. Rouse] because he filed a claim with the Wage and Hour Division of the Federal Department of Labor." This response asserts: "When any official, including Daniel Sullivan, is willing to violate federal law, he cannot be acting in the scope of his official duties [and] has no claim of immunity." The response further states that "the decision to include Mr. Sullivan as a Defendant" was based on the request for injunctive relief to be reinstated. The response indicates that an order to reinstate Mr. Rouse "will do nothing more than command[] Mr. Sullivan to 'refrain from violating federal law.'" ¶13 In his second response to the motion to dismiss, Mr. Rouse alleged Mr. Sullivan "ignored the prohibition against retaliating against an employee who files a wage claim with the Federal Department of Labor." Mr. Rouse maintains that this "departure from the federal mandate addressed in the Fair Labor Standards Act [establishes] he was not acting within the scope of his authority." ¶14 In essence, Mr. Rouse contends Mr. Sullivan's decision to terminate him in violation of the Fair Labor Standards Act and the Whistleblower Act demonstrates a lack of good faith that would take Mr. Sullivan outside the scope of his employment. Despite the compelling logic of this position, this Court has said: "The fact that [the] decision to terminate . . . was contrary to policy prohibiting the termination does not alone take that decision outside the scope of [the decision maker's] employment." Shephard, 2009 OK 25, at ¶ 19, 209 P.3d at 294. ¶15 As we explained, "[a]cting in good faith and using poor judgment are not mutually exclusive, and use of poor judgment does not, without more, exceed the scope of employment." Id. at ¶ 18, 209 P.3d at 294. Where the termination decision is ratified by the governmental entity,1 such ratification establishes prima facie that the decision maker acted in good faith and did not act contrary to the entity's interests. Id. at ¶ 17, 209 P.3d at 294. Preserving immunity from private liability for state employees in such circumstances "allows [state employees] to perform their duties and make decisions on behalf of the State free from fear of suit." Id. at ¶ 20, 209 P.3d at 294. ¶16 The fact that Mr. Rouse cannot pursue an action in court against GRDA or Mr. Sullivan does not mean that Mr. Rouse is without recourse. "The Legislature has provided (1) an appeal to the Oklahoma Merit Commission to any state employee or former state employee aggrieved pursuant to [the Whistleblower Act], and (2) corrective action against any employee found to have violated the Whistleblower Act." Id. at ¶ 5, 209 P.3d at 291 (citing 74 O.S.Supp.2008, § 840-2.5 (G) and (H); identical to the current version, 74 O.S.2011, § 840-2.5 (G) and (H)). ¶17 "These dual remedies provide relief to the offended employee and sanctions for the offending supervisor or agency official." Id. at ¶ 6, 209 P.3d at 291-92. "Relief provided to the whistleblower on appeal to the Merit Protection Commission includes (1) reinstatement, (2) back pay and other benefits in appropriate cases, and (3) expungement of the adverse action from any and all of the employee's personnel records." Id. (citation omitted). "A prevailing employee can also be awarded attorney fees and costs when the employee can demonstrate by a preponderance of the evidence the position of the non-prevailing party was without a reasonable basis or was frivolous." Id. ¶18 The sanctions that can be imposed on an offending supervisor or agency official include suspension without pay, demotion or discharge. 74 O.S.2011, § 840-2.5 (H). A suspended or demoted employee shall also be placed on six months probation. In addition, "Any employee, supervisor or appointing authority of any state agency . . . who knowingly and willfully violates [the Whistleblower Act] shall forfeit [their position] and be ineligible for appointment to or employment in a position in state service for a period of at least one (1) year and no more than five (5) years." Id. (emphasis added). The term appointing authority of an agency is generally defined to mean the chief administrative officer of an agency, 74 O.S.2011, § 840-1.3(3). ¶19 We again stress that jurisdiction over protected whistleblower conduct and retaliation, including power to impose the remedies and penalties under the Act, lies with the Merit Protection Commission. 74 O.S.2011, § 840-2.5(G) and (H) and § 840-2.6. We also stress that a private right of action is not one of the remedies given by the Legislature to enforce the Whistleblower Act and that state employees are limited to the remedies provided in the Whistleblower Act. Shephard, 2009 OK 25, at ¶¶ 7 & 12, 209 P.3d at 292-293. ¶20 The relationship between state employees and those who hire and fire them is one of the core sovereign interests of the State of Oklahoma. In the Whistleblower Act, the Legislature has balanced the need for supervisors and the appointing authorities to manage employees who carry out their agency's mission against the benefits of having those employees report "a violation of . . . state or federal law" in the operation of the agency. The Legislature has determined that this state's sovereign interest is better served by the remedies and penalties in the Whistleblower Act, rather than by a suit in court. ¶21 In the absence of specific statutory authority to the contrary, supervisors and appointing authorities are cloaked with sovereign immunity from private suits for personnel decisions that the Merit Protection Commission may later find to violate the Whistleblower Act. Instead of private suits, they are subject to the remedies and penalties of the Whistleblower Act if, after investigation as provided in subsection (G) and hearing as provided in subsection (H), the Merit Protection Commission determines their personnel decisions violated the Act. ¶22 In conclusion, we hold the trial court correctly ruled that Mr. Rouse failed to state a claim upon which relief can be granted and properly dismissed this suit. Accordingly, the dismissal is affirmed. DISMISSAL AFFIRMED. ¶23 ALL JUSTICES CONCUR. FOOTNOTES 1 The petition in error in related appeal No. 112,637, Rouse v. Oklahoma Merit Protection Commission & Grand River Dam Authority, reflects that GRDA defended Mr. Sullivan's termination of Mr. Rouse before the Merit Protection Commission and in the district court. An appellate court may take judicial notice of its own records in litigation interconnected with the cause before it. Myers v. Lashley, 2002 OK 14, ¶ 5, n. 8, 44 P.3d 553, 556; Matter of C.A.D., 1992 OK 89 ¶ 5, n. 10, 839 P.2d 165, 169. We take judicial notice only of GRDA's ratification of Mr. Sullivan's action and express no opinion about the merits of appeal No. 112,637.

7fa6ad62-7e6f-443c-98ac-a05cfffb379d

Oklahoma Public Employees Assoc. v. Oklahoma Military Dept.

oklahoma

Oklahoma Supreme Court

OKLAHOMA PUBLIC EMPLOYEES ASSOC. v. OKLAHOMA MILITARY DEPT.2014 OK 48Case Number: 111463Decided: 06/10/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellee, v. OKLAHOMA MILITARY DEPT., Defendant/Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. III ¶0 The Oklahoma Public Employees Association brought an action against the Oklahoma Military Department for declaratory judgment and injunctive relief to prevent the Department from making certain pay increases conditional upon declassification. The trial court granted a temporary injunction and temporary restraining order. The Department requested the trial court vacate the injunction and grant a new trial which was denied. The Department appealed and the Oklahoma Court of Civil Appeals reversed the orders and remanded for further proceedings. THE OKLAHOMA COURT OF CIVIL APPEALS OPINION IS VACATED; THE TRIAL COURT'S DECEMBER 6, 2012, ORDER GRANTING TEMPORARY INJUNCTION IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; THE TRIAL COURT'S FEBRUARY 25, 2013, ORDER OVERRULING MOTION TO VACATE IS AFFIRMED Kevin R. Donelson and Kelsie M. Sullivan, Fellers, Snider, Blankenship, Bailey, Tippins, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee Susan E. Werner, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant/Appellant COMBS, J. ¶1 We granted certiorari to consider the Oklahoma Court of Civil Appeals' decision to reverse the trial court's order granting a temporary injunction against the Defendant/Appellant, the Oklahoma Military Department ("Department"), and the trial court's order overruling the Department's motion for new trial and to vacate the temporary injunction.1 The trial court temporarily restrained and enjoined the Department from making pay increases conditioned upon leaving the classified service. ¶2 The record reflects the Department has approximately 330 state employees, of which 128 are in the classified service. Among the classified employees, some are permanent classified employees and some are probationary classified employees. Permanent classified employees are those who have completed their probationary period (one year) and therefore acquired the right to appeal involuntary demotion, suspension without pay, and discharge to the Oklahoma Merit Protection Commission. Title 74 O.S. 2011, §§ 840-1.3 (21) and 840-4.13 (D). Probationary classified employees are those appointed employees who have been in the classified service for less than one year. Title 74 O.S. 2011, § 840-4.13 (D). Such probationary classified employees "may be terminated at any time during the probationary period without the right of appeal." Id. ¶3 In 2011, 44 O.S. 2011, § 21.1 was amended to require personnel appointed as state employees in the Department to be in the unclassified service and to provide additional leave flexibility.2 To coincide with this amendment, the Department issued new policies on hiring, promotions and salary administration. The new policy references 74 O.S. 2011, § 840-4.2 (C), which provides existing classified employees may remain in the classified service when a classified position has been placed in the unclassified service.3 Section 7 of the new policy indicates this choice is only applicable to permanent classified employees. It also provided that permanent classified employees may choose to move to the unclassified service after submitting a written resignation from their classified position. Any future vacancies will be filled exclusively in the unclassified service. ¶4 Section 6 of the new policy provided for the treatment of probationary classified employees. It placed all probationary classified employees in the unclassified service effective November 1, 2011. It further provided for a five percent (5.0%) pay increase upon completion of one (1) year of service, given supervisor approval and available funding. ¶5 Section 13 of the policy entitled "Approved Pay Increases and Promotions" provides "[a]ll promotions will be in the unclassified service." This section does not specifically provide for pay increases for classified employees. ¶6 The record reflects in late August 2012 a series of e-mails by the Department were sent detailing which classified employees would be eligible for a raise. The e-mails indicate a performance-based adjustment of five percent (5.0%) would be granted to those permanent classified employees who had received "exceeds standards" on their annual personal progress report.4 However, an additional condition excluded from the raise all permanent classified employees who did not elect to resign from the classified service and enter the unclassified service. These classified employees were required to submit their resignation letters by August 30, 2012, in order to accept the offer. ¶7 On September 10, 2012, the Plaintiff/Appellee, the Oklahoma Public Employees Association5 ("OPEA"), on behalf of some of the Department's affected permanent and probationary classified employees, filed a petition for declaratory judgment and injunctive relief. The OPEA's primary assertions were as follows: (1) the amendments to 44 O.S. 2011, § 21.1 are facially unconstitutional because they violate Article V, § 57 of the Oklahoma Constitution by not re-enacting and publishing at length 74 O.S. 2011, § 841.30 which concerns the process for an agency to request declassification of its employees, (2) the probationary classified employees were denied due process by being automatically placed in the unclassified service without notice and opportunity to be heard, (3) the affected employees are being denied equal protection under the Fourteenth Amendment of the United States Constitution and under the Oklahoma Constitution by being treated differently from other similarly situated state employees because no other classified employees have been given the ultimatum to declassify or be denied all statutorily conferred benefits and job status as provided under the Oklahoma Personnel Act ("OPA"), 74 O.S. 2011,§§ 840-1.1 through 840-6.9, (4) the Department is violating the OPA because 74 O.S. 2011, § 840-4.2 states probationary employees may obtain permanent status in the classified service after twelve (12) months and the Department automatically denied them permanent classified status by declassifying them and placing them in the unclassified service prior to their obtaining permanent classified status, (5) title 74 O.S. 2011, § 840-2.17 provides the circumstances in which salaries can be increased and it does not provide for conditioning a pay increase on forfeiture of classified status, and (6) the Department's policy forcing affected employees into the unclassified service violates the goal of the OPA, which is to, among other things, provide reasonable protection and security for those who have entered and will enter into the service of the state, provide procedures for advancement and career development, and to treat all employees fairly and equally.6 The Petition sought the following: (1) a declaration that the amendments to 44 O.S. 2011, § 21.1 were facially unconstitutional, (2) the Department's retroactive enforcement and application of the amendments be found unconstitutional, (3) a permanent injunction prohibiting reclassification of affected employees, (4) a permanent injunction mandating affected employees need not forfeit their classified status as a condition of receiving salary increases, (5) a permanent injunction mandating that those probationary classified employees eligible to receive permanent classified status be given a fair opportunity to do so and/or notice and an opportunity to be heard in the event classified status is denied, and (6) attorney fees and costs. ¶8 Simultaneously, the OPEA filed a motion for temporary restraining order and temporary injunction. It argued a temporary injunction was necessary to preserve the controverted matter in status quo pending the outcome of the case. Citing National Collegiate Athletic Ass'n v. Owens, 1976 OK 136, ¶15, 555 P.2d 879, 881. The OPEA also asserted it had met the four factor test to determine if a temporary injunction is proper. ¶9 This four factor test was most recently relied upon by this Court in Dowell v. Pletcher, 2013 OK 50, ¶7, 304 P.3d 457, 460 (citing Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, 251 P.3d 741). Therein we held: To obtain a preliminary injunction, a plaintiff must show that four factors weigh in his favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction relief if the injunction is denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest. ¶10 At the trial court level, the OPEA first asserted it is likely to prevail upon the merits of its claims because: (1) the Department's action refusing any opportunity for a pay increase to those who do not declassify is not authorized under the OPA, (2) the amendments to 44 O.S. 2011, § 21.1 do not provide for retroactive application, i.e., they do not provide for forcing current classified employees into the unclassified service, and (3) the Department's attempt to retroactively declassify the affected employees violates their constitutional rights. ¶11 Next, the OPEA argued affected employees would suffer immediate and irreparable injury, loss and damages if the Department were permitted to continue with its current policy regarding compensation and classification of its employees. The OPEA quoted from our decision in Hines v. Independent Sch. Dist. No. 50, Grant County, 1963 OK 85, ¶14, 380 P.2d 943, 945 (citing Baker v. Lloyd, 1947 OK 12, 179 P.2d 913) wherein we said "[i]njury or detriment is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of damages." The OPEA asserted the Department's policy seeks to divest the affected employees of their right to receive salary increases and promotions but also their statutorily conferred rights as classified employees under the OPA and nothing in the OPA allows for the Department to make such salary increases and promotions contingent upon declassification. The OPEA also asserted the probationary classified employees were denied due process when their classified status was automatically stripped without notice or a hearing. The OPEA essentially argues the Department is coercing its classified employees to declassify and lose the rights conferred under the OPA, and such harm is immeasurable. ¶12 In balancing the equities of the parties, the OPEA asserted the harm to the Department is minimal, if not non-existent, yet the harm to classified employees from declassification is irreparable. The OPEA contended the public interest would be best served by granting the requested relief because: (1) the purpose of the act is lost if the Department is allowed to coerce classified employees to declassify by withholding benefits to which they are entitled, (2) negative retention and morale will occur if the very protections afforded by the OPA to classified employees are stripped away, and (3) the services provided by the affected employees include security, fire and safety functions, and loss of personnel at this level will have a detrimental effect on the public. Therefore, the OPEA asserted the public interest would be negatively impacted if the Department was not restrained from declassifying its employees. ¶13 On September 13, 2012, the trial court held a hearing on the motion for temporary restraining order and temporary injunction. The trial court found the OPEA had met the four factor test and granted a temporary restraining order and temporary injunction. The trial court further determined it lacked authority to order raises but it could order they not be based on classified status. On September 28, 2012, the Department filed an Answer to the Petition for Declaratory Judgment and Injunctive Relief and denied that the OPEA was entitled to the relief sought in its petition. Thereafter, on December 6, 2012, the court memorialized its order on the motion for temporary restraining order and temporary injunction. The trial court determined the OPEA had "sufficiently established the four factors for issuance of a Temporary Restraining Order and Temporary Injunction" and further held: IT IS HEREBY ORDERED that Defendant, Oklahoma Military Department shall be restrained and enjoined from: (1) requiring employees to resign their classified status in order to obtain a raise; and [making] (2) an employee's raise or pay increase based solely upon such employee's status as a classified or unclassified employee. ¶14 On December 17, 2012, the Department moved for a new trial and to vacate the temporary injunction. It asserted the OPEA had not met the four factors for granting a temporary injunction, namely, it did not prove its likelihood of success on the merits, nor that there was irreparable harm present. The Department claimed the potential harm at issue was the loss of a pay raise which can be readily calculated and is thus not immeasurable. Further, the Department argued the injunction is against public policy because the OPEA does not represent all of the diverse interests here. Specifically, it argued, some employees may desire to be outside the restrictive classification system. Additionally, the Department claimed the OPEA lacks standing because its position may not be acceptable to all its members. The trial court overruled the motion for new trial and to vacate the temporary injunction on February 25, 2013. The Department appealed the order granting temporary injunction and the order denying the motion for new trial and to vacate the temporary injunction. STANDARD OF REVIEW ¶15 The purpose of a temporary injunction is to preserve the status quo and prevent the perpetuation of a wrong or the doing of an act whereby the rights of the moving party may be materially invaded, injured or endangered. Sharp v. 251st Street Landfill, Inc., 1991 OK 41, ¶21, 810 P.2d 1270, 1276-1277. A temporary injunction protects a court's ability to render a meaningful decision on the merits of the controversy. Id. The application for temporary injunction is addressed to the trial court's discretion and its ruling will not be disturbed on appeal absent a clear showing of error, either legal or factual, or an abuse of discretion. Id. at ¶24. Further, trial courts are vested with broad legal discretion to grant or deny a new trial, and unless it clearly appears the trial court erred in some pure simple question of law or acted arbitrarily, its judgment will not be disturbed on appeal. Dominion Bank of Middle Tennessee v. Masterson, 1996 OK 99, ¶16, 928 P.2d 291, 294. ANALYSIS ¶16 The Oklahoma Court of Civil Appeals determined the OPEA had standing to bring this action and there was no violation of Article 5, § 57 of the Oklahoma Constitution.7 No petition for certiorari alleged these rulings were made in error and therefore the Oklahoma Court of Civil Appeals' determination will be the law of the case on these issues. See Jackson v. Jones, 1995 OK 131, ¶12, 907 P.2d 1067, 1074. ¶17 The Department's primary assertion on appeal is that the trial court abused its discretion by finding the OPEA had established the four (4) requisite factors for granting a temporary injunction. The Oklahoma Court of Civil Appeals found the OPEA was not likely to succeed on the merits, the first factor, and therefore reversed the trial court's orders granting the temporary injunction and denying the Department's motion for new trial and remanded the matter to the trial court. The Oklahoma Court of Civil Appeals did not address the other three factors. I. THE FIRST REQUISITE FACTOR FOR GRANTING A TEMPORARY INJUNCTION: LIKELIHOOD OF SUCCESS ON THE MERITS ¶18 The OPEA primarily asserts the Department's policies violated the affected employees' constitutional rights to due process of law and equal protection, and the OPA does not provide for pay increases conditioned upon declassification. A. Due Process of Law ¶19 The OPEA argues the Department's policy deprives classified employees of their property interest in continued employment by effectively forcing them to relinquish their property interest in order to receive promotions and pay raises. Both the state and federal constitutions prohibit the deprivation of life, liberty or property without due process of law. United States Constitution, Fourteenth Amendment; Oklahoma Constitution, art. 2, § 7. Here, in order to determine if a right to due process has been violated, it is necessary to first determine whether or not a property right exists. ¶20 The United States Supreme Court has held if an employee has a property interest in continued employment, the government may not deprive the employee of that property without due process of law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494 (1985). The Court also determined property interests are not created by the Constitution but by an independent source, such as state law. Id. Under the OPA, permanent classified employees may be discharged for any just cause but must be given notice of the specific acts or omissions that are the causes or reasons for the proposed action, an explanation of the agency's evidence, and an opportunity to present reasons why the proposed action is improper. Title 74 O.S. 2011, § 840-6.5(C). Section 840-6.5(C) further provides a right to appeal a discharge to the Oklahoma Merit Protection Commission. This Court has also previously determined classified employees are not at-will employees. McCrady v. Oklahoma Dep't of Pub. Safety, 2005 OK 67, ¶10, 122 P.3d 473, 475. Because of such protections afforded permanent classified employees, we hold a property interest in continued employment exists that may not be deprived without due process of law. 1. Probationary Classified Employees ¶21 This property right, however, does not extend to probationary classified employees, who are a distinct type of classified employees. Probationary classified employees do not have a property right in their continued employment because the OPA specifically denies that right until these employees reach permanent status. Title 74 O.S. 2011, § 840-4.13(D) provides, "[t]he probationary appointment of any person may be terminated at any time during the probationary period without the right of appeal." It is clear from the statutory language that the Legislature did not intend to confer a property right on probationary classified employees. Therefore, the effective termination and rehiring of probationary classified employees in the unclassified service did not violate those employees' rights to due process of law. 2. Permanent Classified Employees ¶22 We also hold the permanent classified employees' due process rights were not violated. The amendments to 44 O.S. 2011, § 21.1 were only applied prospectively and did not affect current classified employees. Title 74 O.S. 2011, § 840-4.2, which allows classified employees to remain in the classified service if a position is declassified, was left intact after the amendments to 44 O.S. 2011, § 21.1. Only future appointments to those positions would be in the unclassified service. Further, the Department's policy also referred to the provisions of Title 74 O.S. 2011, § 840-4.2. Conclusion ¶23 We hold the only property interest provided by the OPA is in continued employment for permanent classified employees. This property interest cannot be taken away without due process of law. However, the permanent classified employees were not forced to leave the classified service and they remain under the Merit System and continue to have Merit System protection. Therefore, the rights of the permanent classified employees to due process of law were not infringed. B. Equal Protection ¶24 The OPEA additionally asserts the classified employees are being deprived of equal protection of the law by being treated differently from similarly situated classified employees. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates no state shall "deny to any person within its jurisdiction the equal protection of the laws."8 Although not an absolute guarantee of equality of operation or application of state legislation, the purpose of the Equal Protection Clause is to safeguard against arbitrary discrimination.9 ¶25 An equal protection analysis requires strict scrutiny of a legislative classification only when such classification impermissibly interferes with the exercise of a fundamental right, such as the right to vote, right of interstate travel, rights guaranteed by the First Amendment, or right to procreate; or operates to the peculiar disadvantage of a suspect class, such as one based upon alienage, race, or ancestry.10 Unless a classification warrants some form of heightened review, the Equal Protection Clause only requires the classification rationally further a legitimate state interest.11 ¶26 The OPEA has not shown that any fundamental rights have been infringed in this matter or that the affected employees are members of a suspect class. Therefore, the lower threshold, identified as the rational-basis test, is the correct standard for an equal protection analysis. Classifications are not measured by whether they discriminate, but by whether they discriminate impermissibly or invidiously. Ross v. Peters, 1993 OK 8, ¶ 20, 846 P.2d 1107, 1117. We have held, "[w]here a legitimate state purpose is achieved via a statutory means that does not violate the relatively relaxed standard of minimal rationality, the classification scheme passes constitutional muster." Id. ¶27 The Department's testimony at the hearing on the motion for temporary restraining order and temporary injunction explains the rationale for wanting to encourage classified employees to enter the unclassified service. Brigadier General Robbie Asher, Director of the Joint Staff for the Department, testified concerning the need for flexibility and how declassifying employees would allow the Department to transfer employees to different positions as needed. His testimony indicates this ability directly affects the Department's readiness to respond to protect the public security. From a purely equal protection analysis, we hold this alone serves as a rational basis for the Department's policy of encouraging employees to declassify by giving a raise to those who do. Employees who declassify are also losing the protections of the Merit System and it is rational to compensate them for that loss. We therefore hold the affected employees' rights to equal protection have not been violated. C. AUTHORIZATION FOR A CONDITIONAL RAISE BASED UPON DECLASSIFICATION ¶28 The OPEA also argued the OPA does not provide for conditional raises based upon declassification. The Department asserted the manner in which raises are made is a discretionary matter for the Adjutant General. This issue was not specifically addressed in the Oklahoma Court of Civil Appeals' opinion. We agree and find the OPA does not provide for such a conditional raise. Title 74 O.S. Supp. 2012, § 840-2.17 of the OPA is a very restrictive law regarding salary adjustments. The current version is essentially the same version in effect during the periods relevant to this matter. This section provides as follows: A. Unless otherwise provided by the Oklahoma Constitution, language in law which authorizes the setting or fixing of compensation, pay or salary of state officers and employees shall not be construed to authorize any agency, board, commission, department, institution, bureau, executive officer or other entity of the executive branch of state government to award, grant, give, authorize, or promise any officer or employee of the State of Oklahoma a raise, including, but not limited to, a cost-of-living raise or any other type of raise that would be given to state employees on an across-the-board basis, except as herein provided. Such raises are prohibited unless authorized by the Legislature and by Merit System of Personnel Administration Rules promulgated by the Director. This prohibition applies to all classified and unclassified officers and employees in the executive branch of state government, excluding institutions under the administrative authority of the Oklahoma State Regents for Higher Education. B. However, nothing in this section shall be construed to prohibit the following actions if the action is made in good faith and not for the purpose of circumventing subsection A of this section, and if the appointing authority certifies that the action can be implemented for the current fiscal year and the subsequent fiscal year without the need for additional funding to increase the personal services budget of the agency: 1. Salary advancements on promotion or direct reclassification to a job family level or class with a higher salary band; 2. Salary adjustments resulting from a pay band change for a job family level or class adopted by the Office of Management and Enterprise Services; 3. Increases in longevity payments pursuant to Section 840-2.18 of this title; 4. Payment of overtime, special entrance rates, pay differentials; 5. Payment of wages, salaries, or rates of pay established and mandated by law; 6. Market adjustments for job family levels tied to market competitiveness; 7. Intra-agency lateral transfers, provided that the adjustment does not exceed five percent (5%) and the adjustment is based on the needs of the agency; 8. Skill-based adjustments. Such adjustments, which are implemented before November 1, 2006, other than lump-sum payments, shall become permanent after twenty-four (24) months from the date such salary adjustment is implemented and may not later be removed from an employee's base salary if a furlough or reduction-in-force is implemented by the appointing authority granting such salary adjustment. Skill-based pay adjustments, which are implemented on or after November 1, 2006, and which are paid to an employee, shall be paid as long as the employee remains employed in the position and performs the skills for which the differential is due, but shall not be included as a part of the employee's base salary; 9. Equity-based adjustments; 10. Performance-based adjustments for employees who received at least a "meets standards" rating on their most current performance rating; 11. Career progression increases as an employee advances through job family levels; or 12. Salary adjustments not to exceed five percent (5%) for probationary classified employees achieving permanent status following the initial probationary period and permanent classified employees successfully completing trial periods after intra-agency lateral transfer or promotion to a different job family level or following career progression to a different job family level. C. Provided, however, any reclassification for one of the purposes provided in subsection B of this section that would require additional funding by the Legislature shall not be implemented without approval of the Legislature. D. The pay movement mechanisms described in paragraphs 6 through 11 in subsection B of this section shall be implemented pursuant to rules promulgated by the Director of the Office of Management and Enterprise Services for the classified service. E. Appointing authorities may implement the pay movement mechanisms in paragraphs 6 through 12 in subsection B of this section subject to the availability of funds within the agency's budget for the current fiscal year and subsequent fiscal year without the need for additional funding to increase the personal services budget of the agency. Failure by the appointing authority to follow the provisions of this subsection may cause the withdrawal of the use of the pay movement mechanisms provided in paragraphs 6, 7, 9, 10 and 11 of subsection B of this section within the agency during the next appropriations cycle. F. The provisions in subsection B of this section shall not apply to chief executive officers of any agency, board, commission, department or program except for paragraphs 3 and 5 of subsection B of this section. (Emphasis added) ¶29 The legislative intent is clear. Salary adjustments may only be granted by the Legislature and by the Merit System of Personnel Administration Rules promulgated by the Director or as allowed by the Oklahoma Constitution. The exceptions are listed in subsection B. The record reflects the raises provided by the Department were largely "performance-based" adjustments. Title 74 O.S. Supp. 2012, § 840-2.17(B)(10) provides: B. However, nothing in this section shall be construed to prohibit the following actions . . . 10. Performance-based adjustments for employees who received at least a "meets standards" rating on their most current performance rating; The Department chose to grant raises to permanent classified employees based upon an "exceed standards" rating with the extra condition that such employees must also leave the classified service. The Merit System of Personnel Administration Rules allow for a performance-based adjustment to be made on an overall rating better than "meet standards," i.e., "exceed standards." Okla. Admin. Code 530: 10-7-27 (a).12 However, 74 O.S. Supp. 2012, § 840-2.17 does not provide authorization for a conditional raise based upon declassification. The Department is correct in its assessment that how raises are awarded is a discretionary matter that lies with the Adjutant General. However, such discretion must still fall within the scope established by statute. We find no authority in the very restrictive language of 74 O.S. Supp. 2012, § 840-2.17 that allows an appointing authority to condition pay raises upon declassification. Additionally, the Merit System of Personnel Administration Rules provide an appointing authority must certify that its performance-based adjustment plan "provides for uniform treatment of all permanent classified employees of the agency who achieve a 'meets standards' or 'exceeds standards'" rating. Okla. Admin. Code 530: 10-7-27 (c) (4) (See supra note 12). This rule indicates performance-based raises for permanent classified employees are to be uniformly granted. That is not consistent with the Department's policy of granting performance-based raises to only those permanent classified employees who declassify. ¶30 The trial court's order granting the temporary injunction did not make specific findings as to why the OPEA had established each of the four (4) requisite factors for granting a temporary injunction. Although we hold the OPEA's constitutional challenges to the Department's policies do not show a likelihood of success on the merits, we cannot say the trial court's ruling was an abuse of discretion in light of the fact the OPA does not provide for conditional raises based upon declassification. II. THE REMAINING THREE REQUISITE FACTORS FOR GRANTING A TEMPORARY INJUNCTION: ¶31 The Oklahoma Court of Civil Appeals did not address the remaining three requisite factors for granting a temporary injunction. These three factors are: 1) irreparable harm to the party seeking injunctive relief if the injunction is denied; 2) the threatened injury outweighs the injury the opposing party will suffer under the injunction; and 3) the injunction is in the public interest. Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, 251 P.3d 741. Pursuant to Rule 1.180 of the Oklahoma Supreme Court Rules, upon vacating an opinion of the Oklahoma Court of Civil Appeals, this Court may address all properly preserved and briefed issues not addressed by the Oklahoma Court of Civil Appeals or we may remand the cause to the Oklahoma Court of Civil Appeals to address such issues. For judicial expediency we choose to address the other three factors and determine whether the trial court abused its discretion by finding the OPEA had established such factors and issuing the temporary injunction. A. IRREPARABLE HARM ¶32 In its brief in chief, the Department argued the trial court abused its discretion by finding the second requisite factor had been established. The Department asserts the issue concerning a pay increase and potential loss of increased income falls short of the type of irreparable injury which is a necessary predicate to issue a temporary injunction. Sampson v. Murray, 415 U.S. 61, 91-92, 94 S. Ct. 937, 953-54, 39 L. Ed. 2d 166 (1974). The Department contended the damages accrued by a loss in raises or even a loss of employment are not irreparable but may be remedied through money damages. However, the loss of income is not the only injury that will be sustained by affected employees. Those affected employees who declassify would also lose their rights under the Merit Protection System. It is this loss which is irreparable. ¶33 For purposes of the OPEA's constitutional challenges we have already determined permanent classified employees were not forced to declassify and thus were not forced to give up a property interest in continued employment without due process of law. However, some classified employees may have seen the writing on the wall and grudgingly declassified in order to receive raises and the potential for future promotions. The record reflects at least one classified employee reluctantly declassified in order to receive the raise. If the Department's unauthorized actions of conditioning raises upon declassification caused even one classified employee to declassify, thereby suffering irreparable harm, we are reluctant to find the trial court abused its discretion. Once an employee leaves the classified service that employee is no longer protected by the Merit System. There is no mechanism for that employee to regain that protection, taking into consideration the amendments to 44 O.S. 2011, § 21.1, which makes the position unclassified for all future appointments. Therefore, the loss of the Merit System protection is irreparable. We therefore find the trial court did not abuse its discretion in finding the OPEA had established irreparable harm. B. THE THREATENED INJURY OUTWEIGHS THE INJURY TO THE OPPOSING PARTY UNDER THE INJUNCTION ¶34 The imposition of the unauthorized conditional raise has caused irreparable harm to those who reluctantly declassified and lost the protections of the Merit System. We find no clear harm in the record that the Department will suffer if it is temporarily enjoined from implementing an unauthorized conditional raise. Therefore, we find no abuse of discretion in the trial court's finding that the third requisite factor for granting a temporary injunction had been established. C. THE INJUNCTION IS IN THE PUBLIC INTEREST ¶35 The OPEA asserts the public interest is served by the injunction which will preserve the purpose of the OPA. The purpose of the OPA is "to protect the public from improper use of authority, to protect public officials and employees from unwarranted assaults on their integrity and to enforce the protections for classified employees . . . ." Title 74 O.S. 2011, § 840-1.2. In addition, its purpose is "to maintain a high level of morale, motivation and productivity among state employees." Id. The OPEA argued the Department's actions will have a negative impact on employee retention and morale. Further, the OPEA asserts the affected employees provide security, fire and safety services to our military bases and the loss of personnel at this level will have a detrimental effect on the public. The Department argues an important public policy is being served by the Department's policy. The policy allows the Department to have the necessary flexibility to quickly respond to the needed services it provides to the citizens of Oklahoma. As to this fourth requisite factor for granting a temporary injunction, we cannot say the trial court's findings constituted an abuse of discretion. The parties have shown competing public interests well within the trial court's ability to weigh. CONCLUSION ¶36 On December 6, 2012, the trial court memorialized its September 13, 2012, temporary restraining order and temporary injunction, restraining and enjoining the Department from: "(1) requiring employees to resign their classified status in order to obtain a raise; and (2) [making] an employee's raise or pay increase based solely upon such employee's status as a classified or unclassified employee." The trial court determined the OPEA had established all four (4) requisite factors for issuance of the temporary injunction and temporary restraining order. ¶37 The first provision of the trial court order restrains and enjoins the Department from: "(1) requiring employees to resign their classified status in order to obtain a raise." We hold the trial court did not abuse its discretion in restraining and enjoining the Department from conditioning pay increases on declassification of permanent classified employees. We do, however, reverse the trial court's order as far as this provision of the order is applicable to probationary classified employees. We hold the OPA does not provide the same protection to probationary classified employees as it does for permanent classified employees and the Department's actions concerning the probationary classified employees appear consistent with the OPA. ¶38 The second provision of the trial court order restrains and enjoins the Department from: "[making] (2) an employee's raise or pay increase based solely upon such employee's status as a classified or unclassified employee." The meaning of this part of the order is unclear. We reverse this part of the trial court's order insofar as this provision could be interpreted to restrain and enjoin the Department from granting pay increases authorized by law. We hold an employee's classification in itself, be it classified or unclassified, does not represent a suspect classification. The Adjutant General has discretion to award pay increases the same as any other appointing authority as long as the increases are authorized by law. We hold here, however, there is no authority to require declassification in order to obtain a pay increase. We further hold the trial court did not abuse its discretion by denying the Department's motion for new trial and to vacate the temporary order. THE OKLAHOMA COURT OF CIVIL APPEALS OPINION IS VACATED; THE TRIAL COURT'S DECEMBER 6, 2012, ORDER GRANTING TEMPORARY INJUNCTION IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; THE TRIAL COURT'S FEBRUARY 25, 2013, ORDER OVERRULING MOTION TO VACATE IS AFFIRMED ¶39 CONCUR: KAUGER, WATT, WINCHESTER, EDMONDSON, COMBS, and GURICH, JJ. ¶40 CONCUR IN PART; DISSENT IN PART: COLBERT, C.J. and REIF, V.C.J. ¶41 DISSENTS: TAYLOR, J. ¶42 TAYLOR, J. dissenting I would reverse all orders issued by the trial court. FOOTNOTES 1 On December 17, 2012, the Department filed a Motion for New Trial and to Vacate Temporary Injunction. A court minute was entered on January 18, 2013, overruling the Motion for New Trial and to Vacate Temporary Injunction. On February 25, 2013, the trial court memorialized its order but only overruled the Department's "Motion to Vacate" without mentioning the Department's request for new trial. We assume the trial court was also overruling the Department's motion for new trial because of the court minute. 2 Title 44 O.S. 2011, § 21.1 provides: "[p]ersonnel appointed as state employees in the Military Department shall be in the unclassified service of the state. The Adjutant General may grant leave to state civilian employees consistent with the rules governing the federal workforce in support of the National Guard." Prior to this amendment and since its inception in 1990, this section provided: Personnel appointed as state employees in the Military Department shall be in the classified service of the state, except as otherwise provided by law, and shall be subject to the provisions of the Oklahoma Personnel Act concerning appointments, promotions, adverse actions, and all other personnel matters. However, the Adjutant General may establish a requirement for membership in the National Guard as a special requirement for appointment to, and continued employment in, certain positions in the classified service which require special military training, exercise of command authority, direct specified military programs, or perform other functions directly related to administration and training of the National Guard or the maintenance or repair of National Guard facilities, equipment, or supplies. Such designated positions shall include the specified military grade or grades authorized by the Adjutant General for appointment to the position and continued employment therein. An employee in a designated position who is separated from the National Guard or who does not hold the specified military grade for the position will be reclassified, promoted, demoted, transferred or separated in accordance with the provisions of the Oklahoma Personnel Act and the Merit Rules for Employment. 44 O.S. Supp. 1990, § 21.1; added by Laws 1990, HB 2328, 1990 Okla. Sess. Laws c. 258, § 2 (eff. July 1, 1990). 3 Title 74 O.S. 2011, § 840-4.2 (C) provides: C. Any classified employee who is serving in a position on the effective date of the removal of the position from the classified service and placement into the unclassified service shall have the option of retaining the employee's classified status. Any such employee who elects to change from classified to unclassified status shall so indicate in writing. If the employee chooses to remain in the classified service, the position occupied by the employee shall remain in the classified service until the employee either vacates the position or elects unclassified status. All future appointees to such positions shall be in the unclassified service. 4 Brigadier General Robbie Asher testified on behalf of the Department that the Adjutant General had determined an "exceed standards" criteria would be used this year for promotions and pay raises. (Tr. of the hearing held September 13, 2012, pg. 36, lines 16-21). 5 The Oklahoma Public Employees Association is a not-for-profit corporation organized and existing under the laws of the State of Oklahoma and comprised of state employees and taxpaying citizens of Oklahoma. The members of the OPEA are employed as classified and unclassified employees under the Oklahoma Personnel Act, 74 O.S. §§ 840-1.1 et seq. 6 Title 74 O.S. 2011, § 840-1.2 states the purpose of the Oklahoma Personnel Act is as follows: It is the purpose of this act to protect the public from improper use of authority, to protect public officials and employees from unwarranted assaults on their integrity and to enforce the protections for classified employees and citizens under the Merit System of Personnel Administration. It is further the general purpose of this act to establish for the state a system to recruit, select, develop and maintain an effective and responsive work force; to provide for administrative flexibility and adequate and reasonable protection and security for those who have entered and will enter into the service of the state; to provide for the preservation and protection of the Merit System; and to provide policies and procedures for the selection, hiring, retention, advancement, career development, job classification, salary administration, discipline, discharge and other related activities, all in accordance with principles of merit and fitness and equal employment opportunity, and to maintain a high level of morale, motivation and productivity among state employees. 7 Okla. Const. art. 5, § 57 provides in pertinent part: "no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length . . . ." The OPEA asserted when 44 O.S. 2011, § 21.1, was amended it indirectly amended 74 O.S. 2011, § 841.30. Section 841.30 establishes a procedure for agencies to request unclassified employee positions. The OPEA argued because the bill that amended 44 O.S. 2011, § 21.1, did not re-enact and republish § 841.30, it violated Okla. Const. art. 5, § 57. 8 U.S. Const. amend. XIV, §1. "When called upon to analyze a case on equal protection grounds, a court will apply one of three standards of review; (a) rational basis, (b) heightened scrutiny, or (c) strict scrutiny. If the classification does not implicate a suspect class or abridge a fundamental right, the rational-basis test is used." Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶9 n.22, 66 P.3d 442, 447 n.22). 9 Ross v. Peters, 1993 OK 8, ¶17, 846 P.2d 1107, 1114. 10 Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶9, 66 P.3d 442, 447. 11 Ross at ¶17. 12 Okla. Admin. Code 530: 10-7-27 provides in pertinent part: (a) Performance-based adjustments enable Appointing Authorities to award a salary increase or lump sum payment to employees who have achieved an overall rating of "meets standards" or better on their most recent performance evaluation. This performance evaluation shall be conducted with the standard performance management system provided by 530:10-17-31. . . . . (c) In order to adopt a performance-based adjustment program, an Appointing Authority must submit a written performance-based adjustment plan to the Administrator for approval. The plan must: . . . . (4) Include certification by the Appointing Authority that the agency can fund the performance-based adjustment program for the current and subsequent fiscal year without the need for additional funding, and that the plan provides for uniform treatment of all permanent classified employees of the agency who achieve a "meets standards" or "exceeds standards" except as provided in subsection (e). The Appointing Authority shall not delegate authority to sign the certification; and  

4e8308e8-3d8b-4e31-9c7d-6393c619934a

Glenhurst Homeowners Association, Inc. v. Xi Family Trust

oklahoma

Oklahoma Supreme Court

GLENHURST HOMEOWNERS ASSOCIATION, INC. v. XI FAMILY TRUST2014 OK 38Case Number: 110574Decided: 05/06/2014(Consol. w/110838 for purposes of published opinion)THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GLENHURST HOMEOWNERS ASSOCIATION, INC., Plaintiff-Appellee, v. XI FAMILY TRUST, XIANG YU REN, TRUSTEE, Defendants-Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV, ON APPEAL FROM OKLAHOMA COUNTY ¶0 Homeowners association filed an action against homeowner for breach of real property covenants and sought to have homeowner remove nonconforming shingles and install shingles of the appropriate color. After denying a continuance request from homeowner, the trial court granted summary judgment to the homeowners association. Upon review of the record, we find the trial court's denial of the continuance deprived homeowner of a reasonable opportunity to properly respond to the homeowners association's motion for summary judgment and summary judgment should not have been granted. COCA OPINION IN APPEAL NO. 110,574 VACATED; COCA OPINION IN APPEAL NO. 110,838 VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT Robert T. Keel, Robert T. Keel Law Firm, Oklahoma City, Oklahoma, Attorney for Appellants Matthew L. Winton, Vaughn, Winton & Clark PLLC, Edmond, Oklahoma, Attorney for Appellee GURICH, J., Facts & Procedural History ¶1 Glenhurst Homeowners Association ("HOA") filed an action against Xi Family Trust and Xiang Yu Ren ("homeowner"), for breach of real property covenants. The HOA's Petition argued that the covenant for the Glenhurst Addition required all houses built in the neighborhood to have roofs that were the weathered wood color.1 After a hail storm in 2010, homeowner hired a contractor to replace his roof and told the contractor to put the most energy efficient shingles on the house. The contractor did not put weathered wood colored shingles on the house. In its Petition, the HOA asked the trial court for an injunction, requiring homeowner to remove the nonconforming shingles and install shingles of weathered wood color. ¶2 Homeowner failed to file an answer in the case, and the trial court granted a default judgment against him. Subsequently, homeowner's attorney filed a motion to vacate, but the motion to vacate was denied by the trial court. Homeowner appealed, and COCA reversed, finding that homeowner had met the burden of showing excusable neglect and that the trial court should have vacated the default judgment. Glenhurst Homeowners Ass'n Inc., v. Xi Family Trust, Xiang Yu Ren, Trustee, Case No. 109,645 (Nov. 22, 2011) (unpublished). The case was remanded to the trial court for further proceedings. ¶3 After remand, the HOA filed a motion for summary judgment. The record reflects that homeowner's counsel was out of the country when the HOA filed its motion for summary judgment. Substitute counsel for homeowner, rather than moving for a continuance, filed a response to the HOA's motion for summary judgment. The response recited facts and allegations totally unrelated to the case. The record indicates the response filed by substitute counsel was actually a response from another case in which homeowner was involved. Upon returning to the country, homeowner's counsel realized the error and moved the trial court for a continuance so he could file a proper response.2 The trial court denied the continuance and granted summary judgment. ¶4 Shortly after the trial court granted summary judgment in favor of the HOA, the HOA moved for attorney's fees pursuant to 60 O.S. § 856, Cebuhar v. Bovaird, 2003 OK CIV APP 19, 67 P.3d 348, and Goss v. Mitchell, 2011 OK CIV APP 74, 259 P.3d 886, and costs pursuant to 12 O.S. § 927 and 942. On June 1, 2012, the trial court granted attorney's fees, finding that "[a]s prevailing party, Plaintiff is entitled to an award of attorney's fees and costs in the litigation." The trial court awarded $7,310.50 in attorney's fees and $314.00 in costs.3 Appeal No. 110,574 and Appeal No. 110,838 Are Consolidated for Purposes of Published Opinion Appeal No. 110,574 ¶5 Homeowner appealed the trial court's order granting summary judgment to the HOA. On appeal COCA acknowledged: The trial court should have granted Homeowner's request for a continuance to permit a proper response to be filed. The grant of summary judgment coming one day after Homeowner's motion could be construed as either a denial of the motion or an oversight by the trial court in not addressing the motion before it. Normally, in either event, this Court would remand the matter to the trial court with directions to afford the Homeowner an opportunity to file an answer addressing the facts and assert any relevant defenses. However, in the interest of judicial economy, we do not do so in light of the undisputed facts and the applicable law. ¶6 COCA affirmed summary judgment in favor of the HOA, finding that despite the error by the trial court, the law was clear that homeowner was under statutory, constructive notice of the covenant when he bought the house, so the HOA was entitled to judgment as a matter of law. The dissenting judge argued judicial economy did not justify the acknowledged trial court error. The COCA opinion in Appeal No. 110,574 was entered on August 16, 2012. On August 24, 2012, the HOA filed a Motion for an Award of Appellee's Appeal Related Attorneys' Fees. On September 10, 2012, COCA granted the motion and remanded the matter to the trial court to determine the amount of said fees. On September 5, 2012, homeowner petitioned this Court for certiorari review of the COCA opinion. We granted review on October 29, 2012. ¶7 In Bookout v. Great Plains Regional Medical Center, 1997 OK 38, ¶ 2, 939 P.2d 1131, 1133, a widow brought a negligence and wrongful death suit against Great Plains Regional Medical Center after her husband died while recovering from surgery. The Medical Center filed a motion for summary judgment attaching evidentiary materials in support of its motion. Id. The widow requested a continuance insisting she had recently replaced her attorney and had not had adequate time for discovery to identify all of the material fact issues. Id. ¶ 3, 939 P.2d at 1133. At the hearing to consider the continuance, the widow informed the trial court she had contacted two experts and would provide her experts' affidavits and properly respond to the motion for summary judgment if given two additional days. Id. ¶ 4, 939 P.2d at 1133. The trial judge denied the motion for continuance and entered summary judgment for the Medical Center and against the widow. COCA affirmed. This Court held that the trial court abused its discretion when it denied the widow a two-day continuance to respond to the Medical Center's motion for summary judgment. Id. ¶ 16, 939 P.2d at 1135. ¶8 In Bookout, we stated: The prompt trial and determination of cases in court is most commendable, but when a trial is forced with such dispatch as to result in depriving an interested party of reasonable opportunity to prepare for trial, and secure witnesses; and the whole circumstances are such as to convince that there was an abuse of judicial discretion, it is the duty of this court to reverse.4 See also Cornett v. Carr, 2013 OK 30, ¶ 13, 302 P.3d 769, 773 ("While it is true that diligence of litigants in attending to their matters pending in the courts is of importance, and while it is a significant function of the courts that the litigation before them be determined and disposed of as rapidly as possible, it is also important that all litigants be given a reasonable opportunity to have their day in court, and to have their rights and liberties tried upon the merits. The latter is and should be the primary right of the parties and duty of the courts.") (emphasis added). ¶9 In this case, the trial court abused its discretion in not allowing homeowner time to file a proper response to the HOA's Motion for Summary Judgment. The record is clear that counsel for homeowner was out of the country when the response to summary judgment was due. Substitute counsel for homeowner filed a response that contained facts from another case in which homeowner was involved and which was totally unrelated to the present case. Upon returning to the country, homeowner's counsel realized the error and promptly moved the trial court for a continuance to file a proper response. ¶10 By denying the continuance, the trial court deprived homeowner of a reasonable opportunity to respond. COCA acknowledged as much, and under Bookout, had a duty to reverse and remand the case to allow homeowner an opportunity to properly respond to the HOA's Motion for Summary Judgment. The COCA opinion in Appeal No. 110,574 is vacated, and the trial court's order granting summary judgment in favor of the HOA is reversed. The order entered on September 10, 2012, granting the HOA's Motion for an Award of Appellee's Appeal Related Attorneys' Fees is also vacated. Appeal No. 110,838 ¶11 The homeowner also appealed the trial court's order awarding attorney's fees and costs. On December 31, 2013, COCA, in an unpublished opinion affirmed the award of costs but reversed the trial court's award of attorney's fees. COCA found that 60 O.S. § 856 required the HOA to prove it was a "person owning property" in the development to recover attorney's fees and that there was "no showing in this record that the suit was brought by a 'person owning property' in the development."5 COCA also rejected the HOA's argument that the contractual covenant between the HOA and homeowner provided a basis for an attorney's fee. COCA held that although the "Declaration of Glenhurst Section 3, Article 7, Section 1, which is partially cited in GHOA's appellant answer brief, may have provided a basis for a fee, such argument is rejected for several reasons: It was not pled as the basis for an attorney's fee at trial; it was not produced for examination at trial, according to the appellate record; and finally, it was raised for the first time on appeal." The HOA petitioned this Court for certiorari review of the COCA opinion. We granted certiorari on March 31, 2014. ¶12 Because we reverse summary judgment in favor of the HOA, we decline to address whether either party would be entitled to attorney's fees under 60 O.S. § 856, the contractual covenant between the HOA and homeowner, or any other statutory or contractual provision. Any decision at this point would be advisory as both parties, on remand, will have the opportunity to supplement the record. The COCA opinion in Appeal No. 110,838 is vacated, and the trial court's order granting attorney's fees and costs is also vacated. COCA OPINION IN APPEAL NO. 110,574 VACATED; COCA OPINION IN APPEAL NO. 110,838 VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶13 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, TAYLOR and GURICH, JJ. - CONCUR ¶14 WINCHESTER and COMBS, JJ. - DISSENT FOOTNOTES 1 Record on Appeal in Case No. 110,574, Petition at 2. 2 Counsel for homeowner filed a Motion for Continuance on March 8, 2012, and advised the Court of his circumstances, noted that the Plaintiff's pending Motion for Summary Judgment had not been continued before, and requested 15 days to respond to the motion. Counsel for the HOA did not respond in writing. The Plaintiff's Motion for Summary Judgment was sustained on March 9, 2012. The Journal Entry, which was signed and filed on March 9, 2012, contained no ruling by the trial court on the homeowner's request for a continuance. 3 Record on Appeal in Case No. 110,838 at 29. 4 Id. ¶ 11, 939 P.2d at 1134 (emphasis added). 5 COCA also rejected the HOA's argument that 68 O.S. § 852(C) and § 854 expand the definition of who may seek an attorney's fee under § 856. COCA found the supporting authorities cited by the HOA were inapplicable and declined to adopt the reasoning in Whitehall Homeowner's Association, Inc. v. Appletree Enterprise Inc., Chad Hui Zhu, 2013 OK CIV APP 77, 309 P.3d 144, which awarded an attorney's fee to an HOA pursuant to 60 O.S. § 856.

9f9d7b8a-cc1b-4684-b63a-f360cbabe404

Murray County v. Homesales, Inc.

oklahoma

Oklahoma Supreme Court

MURRAY COUNTY v. HOMESALES, INC.2014 OK 52Case Number: 111,663Decided: 06/24/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MURRAY COUNTY, OKLAHOMA, COUNTY COMMISSIONERS ex rel. MURRAY COUNTY, OKLAHOMA and JOHNSTON COUNTY, OKLAHOMA, COUNTY COMMISSIONERS ex rel. JOHNSTON COUNTY, OKLAHOMA, Plaintiffs/Respondents,v.HOMESALES, INC., JP MORGAN CHASE BANK, N.A. (for itself and as successor by merger to CHASE HOME FINANCE, LLC), and EMC MORTGAGE, LLC f/k/a EMC MORTGAGE CORPORATION, Defendants/Petitioners,andWELLS FARGO BANK, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS), HOUSEHOLD FINANCE CORP, III, US BANK NATIONAL ASSOCIATION, FLAGSTAR BANK, FSB, WACHOVIA BANK, N.A., AURORA LOAN SERVICES, LLC, HOMECOMINGS FINANCIAL NETWORK, LLC, BELVEDERE TRUST FINANCE, DEUTSCHE BANK NATIONAL TRUST COMPANY, and MILLENNIUM STATE BANK OF TEXAS, Defendants. ON WRIT OF CERTIORARI OF CERTIFIED INTERLOCUTORY ORDER FROM THE DISTRICT COURT OF MURRY COUNTY, HONORABLE AARON DUCK, TRIAL JUDGE ¶0 Defendants Homesales, Inc., (Homesales), JPMorgan Chase Bank, N.A. (Chase) and EMC Mortgage, LLC, f/k/a EMC Mortgage Corporation1 appeal a certified interlocutory order granting partial summary judgment in favor of Plaintiffs Murray County, Oklahoma, County Commissioners ex rel. Murray County, Oklahoma and Johnston County, Oklahoma, County Commissioners ex rel. Johnston County, Oklahoma (the Counties). This case concerns the Documentary Stamp Tax Act (DSTA), Title 68 O.S. 2011 §§ 3201 through 3206, and its applicability to conveyances in four mortgage foreclosure actions prosecuted by Chase. The grantees claimed that the conveyances were exempt from documentary taxes. The Counties disagreed and sued to collect the taxes they claimed were due. The district court granted partial summary judgment to the Counties finding that the conveyances were not exempt from the DSTA, and that the Counties could sue to enforce the provisions of the DSTA and collect the documentary taxes that were not paid on these transactions. We hold that the Counties are not authorized to prosecute violations of the DSTA. However, the Counties do have standing to challenge the exemptions from the documentary tax claimed for these conveyances. Nonetheless, based on the record provided to the district court in the summary judgment proceeding, the Counties have not established that the challenged transfers are subject to documentary taxes. We reverse the order granting partial summary judgment and remand for further proceedings consistent with this Opinion. CERTIORARI PREVIOUSLY GRANTED; CERTIFIED INTERLOCUTORY ORDER OF THE DISTRICT COURT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. Clyde A. Muchmore, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, for Defendants/Petitioners.Kenneth M. Kliebard, Morgan, Lewis & Bockius, LLP, Chicago, Illinois, for Defendant/Petitioners.Darryl F. Roberts and Jason D. May, P.O. Box 1568, Ardmore, Oklahoma, for Plaintiffs/Respondents. FISCHER, S.J.: ¶1 In this appeal, we must determine whether a transfer of real property between affiliated business entities constitutes a "sale" for purposes of the Documentary Stamp Tax Act. We hold that the transfer of real property between affiliated corporations or transfers on behalf of the beneficial owner of real property are not taxable if any consideration paid does not exceed $100. FACTS ¶2 This case involves the conveyance of title to real property as a result of four real estate foreclosure proceedings. Chase filed each foreclosure case and was the successful bidder at each sheriff's sale. Therefore, Chase was entitled to a sheriff's deed to each of the properties. However, Chase did not take title. Instead, sheriff's deeds were granted to Chase's affiliated entities. The deeds were recorded with the respective county clerks. The grantees noted on the conveyances that the deeds were exempt from documentary taxes. And, no documentary taxes were paid. ¶3 The Counties contend the conveyances involved in this case are not exempt and filed this suit to collect the applicable documentary taxes. On November 28, 2011, the Counties filed their First Motion for Partial Summary Judgment. In its response, Chase argued that the Counties did not have standing to enforce the provisions of the DSTA and that the deeds at issue were exempt from documentary taxes. The district court granted the Counties' motion for partial summary judgment on February 11, 2013, and then certified "that an immediate appeal would materially advance the ultimate termination of this litigation." See Okla. Sup. Ct. R. 1.50, 12 O.S.2011, ch. 15, app. 1. We granted the Defendants' petition for certiorari to review the district court's interlocutory order.2 STANDARD OF REVIEW ¶4 The Defendants argue in this appeal that the order granting partial summary judgment should be reversed for two reasons: (1) the Counties lack standing to enforce the provisions of the DSTA; and (2) the post-foreclosure conveyances are exempt from documentary taxes. The district court's order granting summary judgment is reviewed de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. That review requires examination of the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears "an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. ¶5 Legal questions involving the district court's statutory interpretation of the DSTA are also subject to de novo review. Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654. The primary goal of statutory construction is to ascertain and apply the intent of the Legislature that enacted the statute. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307. ANALYSIS ¶6 The Documentary Stamp Tax Act imposes a tax on certain transfers of real property: A tax is hereby imposed on each deed, instrument or writing by which any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser . . . when the consideration or value of the interest or property conveyed . . . exceeds One Hundred Dollars ($100.00). 68 O.S.2011 § 3201(A). "'Sold' means a transfer of an interest for a valuable consideration, which may involve money or anything of value." 68 O.S.2011 § 3201(C)(1). "Consideration" is defined as "the actual pecuniary value exchanged or paid . . . for the transfer or conveyance of an interest of realty . . . ." 68 O.S.2011 § 3201(C)(3). When a sale of real property occurs, a documentary tax is levied on "the privilege of executing a 'deed, instrument or writing' that effects transfers of 'land, tenements and other realty.'" Johnston v. Oklahoma Tax Comm'n, 1972 OK 88, ¶ 9, 497 P.2d 1295, 1297. The tax is collected through the sale of documentary stamps provided by the Oklahoma Tax Commission (OTC) and sold by the county clerks. 68 O.S.2011 §§ 3203 and 3204. The county clerk is authorized to retain and deposit in the county general fund five percent of the first $0.55 of every $0.75 collected and the remaining $0.20 of each $0.75 collected. 68 O.S.2011 § 3204(B)(1) and (C). The balance is forwarded to the OTC. 68 O.S.2011 § 3204. However, certain transfers of real property are exempt from the documentary tax. See 68 O.S.2011 § 3202; Okla. Admin. Code § 710:30-1-9. ¶7 The facts dispositive of this appeal are established from two sources, the judgments in the foreclosure cases and the summary judgment record. The judgments in the foreclosure proceedings are now final and are not subject to collateral attack in this case "in the absence of fraud, mistake or collusion," none of which have been asserted with respect to the those judgments.3 Chandler v. Denton, 1987 OK 109, ¶ 10, 747 P.2d 938, 941. Further, those judgments are presumed to include a finding of every fact required to support the judgment. Gage v. Estep, 1966 OK 52, 422 P.2d 449. The facts and the inferences drawn from the summary judgment record "must be taken in favor of the party opposing the motion." Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 56. So viewed, the record establishes that at the time each of the four foreclosure actions was filed, Chase was the holder of a promissory note and mortgage securing repayment of the note on the real property being foreclosed or that it was the party entitled to enforce those instruments. After the borrowers defaulted, Chase successfully sued to collect the unpaid balance of the notes and foreclose its mortgages. Each case resulted in a judgment in favor of Chase for the note balance. The judgments also foreclosed Chase's mortgages and directed the sheriff to sell the property secured by the mortgages. Chase was the successful bidder at the sheriff's sale in each case and subsequently filed a motion to confirm the sales. ¶8 The district court orders confirming the sales recite that the properties were sold to Chase, that the sales were made in conformity with the statutes of Oklahoma and that at the hearing on the motions to confirm the sales Chase assigned all of its right, title and interest in the properties. In three of the proceedings, Chase assigned its interest to Homesales. Homesales is a wholly owned subsidiary of Chase. In the fourth foreclosure action involving property previously owned by Linda Gentry, Chase assigned its interest to the Federal National Mortgage Association (FNMA). FNMA was the beneficial owner of the Gentry property and Chase was acting as FNMA's agent in that foreclosure. At the direction of the district court and Chase, the sheriff executed deeds to Homesales and FNMA. The deeds state that they are exempt from documentary stamp tax pursuant to section 3202(13): "Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed . . . ." The Counties contend that no exemption from documentary stamp tax is available for the conveyances subsequent to Chase's oral assignment of its interest in the properties at the confirmation hearings. They filed this suit to enforce section 3201 and collect the documentary taxes they contend are due. I.THE COUNTIES DO NOT HAVE STATUTORY AUTHORITY TO PROSECUTE VIOLATIONS OF THE DOCUMENTARY STAMP TAX ACT ¶9 The initial issue raised by Chase is whether the Counties have standing to sue to collect unpaid documentary taxes. "Taxation is an exclusively legislative function that can be exercised only under statutory authority and in the manner specified by statute." State ex rel. Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, ¶ 7, 131 P.3d 705, 707 (citing Gay v. Thomas, 1896 OK 67, 46 P. 578). Chase contends that only the OTC has statutory authority to enforce the DSTA and, therefore, the Counties do not have standing to prosecute this action. Chase specifically points to section 3205 of the DSTA: "The Oklahoma Tax Commission through the Documentary Stamp Tax Unit shall be responsible for the administration and enforcement of the taxes as imposed by Section 3201 of this title." Chase's argument depends on the construction of this language. "When the Legislature has clearly expressed its intent, the use of additional rules of construction are almost always unnecessary and a statute will be applied as written." Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d at 307 (citations omitted). Here, the plain language of the statute states that the OTC is "responsible for the administration and enforcement" of the DSTA through the OTC's Documentary Stamp Tax Unit. 68 O.S.2011 § 3205. The Counties argue, however, that nothing in the DSTA expressly states that the OTC is solely responsible for administration and enforcement or that county clerks are prohibited from filing enforcement actions. Construction of the DSTA is necessary to resolve these questions. ¶10 The Counties do not address the effect of section 3205 of the DSTA. They rely on their general authority to "sue and be sued." 19 O.S.2011 § 1. From this, the Counties conclude that they may exercise this authority and initiate judicial proceedings to prosecute violations of the DSTA because they are the governmental entities charged with collecting documentary taxes. Section 3204(A) does provide that "the county clerks shall have the responsibility of selling [documentary] stamps and shall have the further duty of accounting for the stamps to the Oklahoma Tax Commission on the last day of each month." And, general principles of statutory construction require parts of a legislative enactment to be construed so as to "harmonize [each provision] with all the others." Oklahoma Natural Gas Co. v. State ex rel. Vassar, 1940 OK 137, ¶ 10, 101 P.2d 793, 796. Even so, the construction of individual provisions of a statutory scheme must be consistent with the overriding policy of the entire enactment as intended by the Legislature. Id. We find the Counties' argument unpersuasive. ¶11 First, it is the policy of this State, "to provide, so far as possible, uniform procedures and remedies with respect to all state taxes." 68 O.S.2011 § 201 (describing the purpose of the Uniform Tax Procedure Code). Unless expressly provided otherwise, the Uniform Tax Procedure Code "shall control and shall be exclusive." Id. The Legislature has vested in the OTC the authority to "enforce the provisions of [the Uniform Tax Procedure Code] and to promulgate and enforce any reasonable rules with respect thereto." 68 O.S.2011 § 203. Although the OTC is required to "coordinate with city and county governments to increase state and local sales and use tax collections through joint enforcement efforts," the OTC maintains "central administration" of such efforts. 68 O.S.2011 § 281. As later discussed in this Opinion, it does not appear the OTC and the Counties share the same view regarding the taxability of the conveyances at issue in this case. Uniform procedures and remedies for the assessment and collection of documentary taxes cannot be achieved if the results depend on the county in which the transaction occurred. "The construction placed on a statute by officers in the discharge of their duties . . . which has been long acquiesced in, is a just medium for its judicial interpretation." Oklahoma Tax Comm'n v. Liberty Nat'l Bank & Trust Co., 1955 OK 208, ¶ 0, 289 P.2d 388 (syllabus 1). Only the OTC has been charged by the Legislature with developing and implementing uniform tax policy. ¶12 Second, the Counties' position conflicts with the general statutory procedure established by the Legislature for collecting unpaid taxes. That procedure begins with an administrative determination by the OTC that taxes are due and on certification of the debt, the entry of, in effect, a judgment for the taxes due. 68 O.S.2011 §§ 221 and 230. The OTC may also issue a tax warrant for unpaid taxes to a county sheriff. 68 O.S.2011 § 231. In either instance, the county clerk is charged with the ministerial task of filing the OTC's certification or warrant. Generally, the OTC's administrative process is a prerequisite to litigation. State ex rel. Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, 131 P.3d 705 (OTC may not bypass the administrative process and file suit in district court except where a false or fraudulent report is filed with intent to evade taxes). When litigation is necessary, the Legislature requires that suit be filed "in the name of the State of Oklahoma, on relation of the Oklahoma Tax Commission." 68 O.S.2011 § 215(a). In none of these statutes is any authority granted to county clerks to sue to collect unpaid taxes. ¶13 The only governmental officer other than the general counsel of the OTC who is statutorily authorized to file suit to recover unpaid taxes is the Attorney General. 68 O.S.2011 § 250. If the Legislature has authorized the Attorney General to do so, it could have also provided similar authorization for county clerks. The fact that it did not supports the conclusion that the Legislature did not intend for counties to have direct enforcement authority to collect unpaid taxes. See McSorley v. Hertz Corp., 1994 OK 120, ¶ 19, 885 P.2d 1343, 1350-51 (omission of self-insurers from the list of those statutorily required to offer uninsured motorist coverage was evidence of legislative intent not to require self-insurers to offer uninsured motorist coverage). Nor can we conclude that this omission was inadvertent, at least with respect to the DSTA. The Legislature specifically addressed the county clerk's enforcement role in that context. If a county clerk becomes "aware" that a taxpayer has not or might not have paid the correct amount of documentary tax, the clerk must "immediately report the facts to the Oklahoma Tax Commission." 68 O.S.2011 § 3206(D). No provision of the DSTA authorizes county clerks to take any further action. "The law-making body is presumed to have expressed its intent in a statute's language and to have intended what the text expresses." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219. The enforcement authority of the OTC and the role of the county clerks in that process are specifically addressed in the DSTA. County clerks are required to sell documentary stamps, account for the proceeds and report any suspected violation to the OTC. Although the Counties' have general authority to sue granted in Title 19 O.S.2011 § 1, they have not been granted any similar authority in the specific DSTA statutes at issue here. "Where a matter is addressed by two statutes, one specific and the other general, the specific statute governs over the general provision." Jones v. State, 2011 OK 105, ¶ 14, 268 P.3d 72, 76. Cf., Dowell v. Pletcher, 2013 OK 39, 304 P.3d 735 (affirming dismissal of county clerk in action by bail bondsman challenging the "Ten Bond Rule" finding clerk had no enforcement authority because Legislature implemented detailed procedure giving Insurance Commissioner "full power and authority" to enforce the rule). ¶14 Third, rules promulgated by the OTC for the administration and enforcement of the DSTA confirm that county clerks do not have direct enforcement authority. See 68 O.S.2011 § 3205: "The Oklahoma Tax Commission shall prescribe such rules and regulations as it may deem necessary to carry out the purpose of Sections 3201 through 3206 of this title." Pursuant to this authority, the OTC promulgated rules "to facilitate the administration, enforcement, and collection of taxes and other levies enacted by the Oklahoma Legislature with respect to documentary stamps." Okla. Admin. Code § 710:30-1-1 (codified Dec. 30, 1991). Those rules were adopted by the Legislature and now "have the force of law" (75 O.S.2011 § 308.2(C)), subject to judicial review. 75 O.S.2011 § 306(C) ("Rules promulgated pursuant to the provisions of the Administrative Procedures Act are presumed to be valid until declared otherwise by a district court of this state or the Supreme Court."); Indep. Sch. Dist. No. I-20 of Muskogee County v. Okla. State Dep't of Educ., 2003 OK 18, 65 P.3d 612 (agency rule may be challenged pursuant to the declaratory judgment provision of 75 O.S. § 306). The OTC's rules very clearly describe the different roles of the OTC and the county clerks with respect to the collection of documentary taxes. Rule 710:30-1-10 sets out the "Duties and responsibilities of the county clerk." The Rule states: "County clerks are responsible for selling Documentary Stamps to the taxpayers and have the duty of accounting for the stamps to the Oklahoma Tax Commission." The county clerk's role in the enforcement of the DSTA is limited to two functions. "In order to make a correct determination of tax due, the county clerks have the duty to request taxpayers to produce satisfactory documentation which correctly discloses the value of the property." Okla. Admin. Code § 710:30-1-10(2). "If the taxpayer claims exemption from the payment of the documentary stamp tax, and there is no notation on the deed indicating the reason for the claiming of the exemption, the county clerk shall make a brief notation on the face of the deed indicating the reason for claiming the exemption." Okla. Admin. Code § 710:30-1-10(5). Rule 710:30-1-7 provides that if a taxpayer does not pay the necessary amount of documentary taxes "the Commission shall" send a proposed tax assessment to the taxpayer. The taxpayer can challenge that assessment by filing a protest with the Commission. However, no authority is provided in the OTC's rules for county clerks to decide a taxpayer's protest. Any protest "will be forwarded to the General Counsel's Office of the Oklahoma Tax Commission for disposition." Id. ¶15 The rules promulgated by the OTC and adopted by the Legislature for the enforcement of the DSTA provide that the county clerks have a subordinate and ministerial role in that process. "For the purpose of collecting the [documentary] stamp tax, the county clerks act as agents of the Oklahoma Tax Commission." Okla. Admin. Code § 710:30-1-10. The essential factor in any agency relationship is the principal's right to control the conduct of the agent. Enterprise Mgmt. Consultants, Inc. v. State ex rel. Oklahoma Tax Comm'n, 1988 OK 91, ¶ 6, n.13, 768 P.2d 359, 362. And, an agent cannot unilaterally expand the scope of authority specified by the principal. Home Owners' Loan Corp. v. Thornburgh, 1940 OK 424, 106 P.2d 511. The Counties have cited no rule by which the OTC has delegated to them the authority to file suit to collect unpaid documentary taxes, much less any authorization from the OTC to file this law suit.4 In all of the applicable statutory provisions, only the OTC is specifically charged with "enforcement of the taxes as imposed by Section 3201." 68 O.S.2011 § 3205. No provision of the DSTA similarly authorizes a county to do so. "[T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act." Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216. We will not read into the DSTA authority for the Counties to prosecute violations of the Act when the Legislature has declined to do so. II.THE COUNTIES HAVE STANDING TO SEEK DECLARATORY RELIEF ¶16 Even though we find that the Counties do not have statutory authority to prosecute violations of the DSTA, that does not necessarily mean that they do not have standing to bring this case. Although the OTC has primary responsibility for administration and enforcement of the DSTA, it does not have ultimate authority to determine when documentary taxes are due. This Court is the final arbiter of disputed tax matters. Okla. Const. art. VII, § 4; 68 O.S.2011 § 225 (taxpayer aggrieved by any order of the Tax Commission may appeal to Supreme Court), and § 3027(final orders from the Court of Tax Review may be appealed to the Supreme Court); Turner v. Oklahoma Tax Com'n, 1993 OK 77, 858 P.2d 433 (Legislature has made the Supreme Court the final arbiter of the meaning of tax statutes). Further, this Court has previously recognized the standing of parties to invoke this Court's jurisdiction and determine disputed tax matters even in the absence of statutory authority to do so. Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794 (potential taxpayer could sue for declaratory relief where statutory remedy to sue for refund of tax paid was not available to challenge constitutionality of taxing statute before tax was due); Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233 (abrogated in part by constitutional amendment) (school district could seek injunction preventing payment of tax refund and challenge exemption claimed by a taxpayer). Finally, this Court has long-recognized the availability of its equitable powers to protect the public treasury from unlawful dissipation or management by those officially charged with the care and custody of public funds. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 8, 163 P.3d 512, 519 (citing Kellogg v. School Dist. No. 10 of Comanche County, 1903 OK 81, 74 P. 110). The question, therefore, is whether the Counties have demonstrated their standing to invoke the jurisdiction of Oklahoma courts in this case. ¶17 "'Standing' is the right to commence litigation, to take the initial step that frames legal issues for ultimate adjudication by a court or jury." State ex rel. Bd. of Regents v. McCloskey Bros., Inc., 2009 OK 90, ¶ 18, 227 P.3d 133, 144. The doctrine of standing identifies those disputes that are appropriately resolved through the judicial process. Fent, 2007 OK 27, ¶ 7, n.20, 163 P.3d at 519 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992)). Standing requires proof of: (1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. Fent, 2007 OK 27, ¶ 7, 163 P.3d at 519 (citing Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 16, ¶ 3, 976 P.2d 545, 547, and Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 8, 890 P.2d 906, 910). "The appropriate inquiry on a standing question is whether the plaintiff has in fact suffered injury to a legally protected interest as contemplated by statutory or constitutional provisions." Leavitt, 1994 OK 148, ¶ 9, 890 P.2d at 911. Standing is an aspect of justiciability, and "focuses on the party seeking to get [a] complaint before the court and not on the issues tendered for determination. In standing problems the inquiry posed is whether the party invoking the court's jurisdiction has a legally cognizable interest in the outcome of the tendered controversy." Application of State ex rel. Dep't of Transp., 1982 OK 36, ¶ 6, 646 P.2d 605, 609. ¶18 This Court dealt with a similar issue in Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233. Glass involved a suit by a school district challenging a refund payable as the result of a tax exemption claimed by a taxpayer. The taxpayer's property was located in the school district and granting the exemption would directly reduce the revenue received by the district. Cf., Indep. Sch. Dist. No. 5 of Tulsa County v. Spry, 2012 OK 98, 292 P.3d 19 (school districts lacked standing to challenge voucher program where funds at issue were part of legislative appropriation rather than taxes paid by school district taxpayers). The board of tax-roll corrections granted the taxpayer's request and the school district sued to enjoin payment of the refund. As in this case, the taxing statute in Glass did not authorize enforcement by the school district. That remedy was available only to the taxpayer or the county assessor. See 68 O.S. Supp. 1974 § 2479. Nonetheless, this Court held that injunctive relief was available because the statutory remedy was not. "We agree with the District that it has standing to seek injunctive relief. The District has an interest in the subject matter, the capacity to sue, and the power to protect and prevent the wrongful disposition of revenues." Glass, ¶ 11, 639 P.2d at 1238. ¶19 Even though the school district in Glass was ultimately unsuccessful in preventing the tax refund, as relevant to the standing issue in this case, Glass is indistinguishable. The Counties have the capacity to sue. The statutory remedy for direct enforcement of the DSTA is not available to the Counties. However, the relief sought by the Counties is not limited to collection of the allegedly unpaid documentary taxes. The Counties also seek an "[a]djudication by the Court that documentary stamp taxes are due pursuant to 68 O.S. § 3201 [and] . . . that exemptions from the purchase of documentary stamps made by the defendants pursuant to 68 O.S. § 3201 were [not] lawful." When statutory relief is inadequate, equitable relief may be available. See Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794. The non-monetary relief sought by the Counties in this case is authorized by Oklahoma's declaratory judgment law, Title 12 O.S.2011 §§ 1651 to 1657. "A determination of rights, status, or other legal relations may be obtained by means of a pleading seeking that relief alone or as incident to or part of a petition, counterclaim, or other pleading seeking other relief . . . ." 12 O.S.2011 § 1652. ¶20 The proof required for the Counties' to establish their right to pursue declaratory relief is set out in Gordon v. Followell, 1964 OK 74, ¶ 8, 391 P.2d 242, 245: The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination. Here, the Counties are entitled to $0.2275 of each $0.75 in documentary stamps sold. The exemptions claimed with respect to the conveyances at issue in this case deprive the Counties of the documentary tax related to the transactions involved in this appeal. And, a determination that the Defendants are claiming the exemptions in violation of the DSTA is likely to result in the Counties' receipt of the taxes for which they filed this case. "A violation of a state statute is an injury to the State and its citizens. A continuing violation is an irreparable injury for which injunctive relief is available." Glass, ¶ 10, 639 P.2d at 1237. We agree with the Counties; they have a "legally cognizable" interest in the outcome of this litigation and have established their standing to pursue declaratory relief. "If standing exists, the case must proceed on the merits." Id.5 III.THE DOCUMENTARY STAMP TAX ACT ¶21 The judgments in the foreclosure cases establish that Chase was the holder of the promissory note and mortgage in each of the four foreclosure proceedings or a person entitled to enforce those instruments. Therefore, it is clear that if the sheriff's deeds in each case had conveyed the property to Chase, Chase would have been entitled to the mortgage foreclosure exemption and no documentary taxes would be due. "The tax imposed by Section 3201 of this title shall not apply to: . . . Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed . . . ." 68 O.S.2011 § 3202(13). The Counties do not argue otherwise. Their claim to documentary taxes is based on the fact that the sheriff's deeds were not granted to Chase but to its corporate subsidiary, Homesales, or in the case of the Gentry property to Chase's principal, FNMA. To prove that documentary taxes are due as a result of these conveyances, the Counties must first show that the properties were "sold," which requires proof that there was a "transfer of an interest for a valuable consideration." 68 O.S.2011 § 3201(C)(1). Second, the Counties must prove that the sales are not exempt. Our disposition of the first issue makes consideration of the second unnecessary. ¶22 Jim Walter Homes, Inc. v. County Clerk of Okfuskee County, 1986 OK CIV APP 35, 734 P.2d 849 (approved for publication by the Supreme Court), cited by the district court, addressed similar issues.6 The Court of Appeals held that a homebuilder's exchange of a foreclosure judgment for a sheriff's deed at the confirmation hearing constituted "consideration," therefore a sale of the property occurred that was not exempt from documentary tax. As authority for its holding regarding the exchange of consideration, the Court cited Railroad Federal Sav. & Loan Ass'n v. United States, 135 F.2d 290 (2d Cir. 1943). That case held that a mortgagor's waiver of the right to pursue a deficiency constituted consideration for a deed in lieu of foreclosure and was subject to documentary tax. The Court of Appeals noted that reliance on federal case law was appropriate because Oklahoma's documentary tax statutes "were taken from long-standing federal statutes . . . [and] there are numerous cases which have interpreted 26 U.S.C. § 4361, which contains the exact language of our statute." Jim Walter Homes, 1986 OK CIV APP 35, ¶ 8, 734 P.2d at 851. Although the federal statute at issue in Railroad Federal is identical to section 3201(A), the tax on the transaction was imposed pursuant to a United States Treasury regulation providing that a conveyance by a defaulting mortgagee in consideration for cancellation of the debt is taxed based on the amount of the debt plus accrued interest. As Judge Learned Hand's dissent in Railroad Federal points out, the effect of the regulation was to tax not only the value of any equity paid to the mortgagee but also the remaining amount of the debt without deducting the value of the land for which the mortgagor had originally loaned the purchase price. Railroad Federal, 135 F.2d at 293 (Hand, J. dissenting). Deeds in lieu of foreclosure are now exempt from documentary taxes in Oklahoma. 68 O.S.2011 § 3202(13). ¶23 Closer to the analysis required to resolve this case is Berkeley Sav. & Loan Ass'n of Newark N.J. v. United States, 301 F. Supp. 22 (D.C.N.J.1969), also interpreting the Federal Documentary Stamp Tax Act. In Berkeley, the savings and loan argued that a conveyance from the Veterans Administration (VA) of legal title to property securing repayment of installment contracts it purchased from the VA did not trigger the federal documentary tax imposed on deeds by which real property is sold because the installment contracts required the savings and loan to convey that title to the equitable owner, the installment contract obligor, after payment of a certain amount of the installment contract balance. The Court agreed. [N]ot all deeds, instruments, or writing[s] conveying land or other realty are to have stamps affixed to them; only those deeds, instruments, or writings conveying land or other realty sold need have stamps affixed. Necessary, then, is an examination of the transaction being considered to see if there is a sale of realty; whether or not there is a sale depends, in the court's view, on whether or not the transfer of title was for consideration, and on the intention of the parties and the purpose for which the 'purchasing' party desires the property. Berkeley, 301 F. Supp. at 25. Cf., United States v. Niagara Hudson Power Corp., 53 F. Supp. 796, 801 (S.D.N.Y.1944) (transfer of legal title from one wholly owned subsidiary corporation to another wholly owned subsidiary as the result of a merger of the two subsidiary corporations did not require federal documentary stamp taxes). Like the Jim Walter Homes Court, we find these federal cases helpful in determining when a sale occurs for purposes of documentary taxes. ¶24 However, there are two reasons why Jim Walter Homes does not resolve the issues in this case. First, the taxable transaction in Jim Walter Homes was based on the sheriff's deed to the homebuilder. According to the Counties, the potentially taxable transaction in this case is not between the sheriff and deed grantee, Homesales or Gentry, but between the entity entitled to receive a tax exempt sheriff's deed, Chase, and the entity that was granted the deed, its wholly owned subsidiary, Homesales, or in the case of the Gentry property, Chase's principal, FNMA. Second, the Court of Appeals holding that exchange of a foreclosure judgment for the sheriff's deed constitutes consideration for a taxable sale cannot be extended to this case. Although the definition of "sold" in the version of the DSTA applied in Jim Walter Homes is identical to the definition in section 3201, the Court of Appeals did not address the meaning of the statutory definition of "consideration" added in 1983 and now part of the current version of the DSTA. "Consideration" means the actual pecuniary value exchanged or paid or to be exchanged or paid in the future, exclusive of interest, whether in money or otherwise, for the transfer or conveyance of an interest of realty, including any assumed indebtedness. 68 O.S. Supp. 1983 § 5101(C)(3), renumbered from § 5101 by Laws 1988, ch. 162, § 160. ¶25 This Court has not previously determined what constitutes "consideration" and a sale of real property for purposes of the DSTA. We have, however, interpreted other provisions of the Oklahoma Tax Code involving taxes on transfers of real property. In the case of In re Assessments for the Year 2005 of Certain Real Property, 2007 OK 25, 161 P.3d 303, this Court held that a quit claim deed by trust beneficiaries as co-trustees to a limited liability company of which they were the only members transferred legal title only and, therefore, did not constitute a transfer requiring an assessment of the property at its current value for purposes of ad valorem taxes pursuant to Okla. Const. art. 10 § 8(B): "When only legal title is transferred but the equitable ownership is in the same two persons both before and after a deed is executed concerning the property we do not believe the intent of [section 8(B) was to lift] the five percent (5%) fair cash value cap." Id. ¶ 13, 161 P.3d at 311. The Court noted that holding was consistent with previous decisions involving related tax issues, citing Bowls v. Oklahoma City, 1909 OK 149, 104 P. 902 (holder of the equitable title to land pursuant to an executory contract of sale is the owner for the purpose of taxation); State ex rel. Cartwright v. Dunbar, 1980 OK 15, 618 P.2d 900 (ownership of property rather than legal title determines the applicability of the constitutional exemption from ad valorem taxes for property of the state). Accord, In re Assessments for the Year 2003 of Certain Properties, 2006 OK CIV APP 147, 150 P.3d 399 (deed from one limited liability company to another to obtain refinancing did not constitute a transfer triggering ad valorem assessment at current value where both LLC's were owned and controlled by the same third LLC). ¶26 This Court's focus on the substantive nature of the underlying transaction has been followed by the OTC in its administration and enforcement of the DSTA as well. In Documentary Stamp Tax, P-92-222, 1995 WL 557131 (Okla. Tax Comm'n 1995), the OTC found that a quit claim deed granted by a former husband to effectuate the terms of a divorce decree awarding property to his former wife was not a sale as defined in 68 O.S.1991 § 3201(B) because it conveyed no interest beyond the wife's beneficial ownership already established by the divorce decree. A similar result was reached in 1994 interpreting the definition of "sold" in the 1985 version of the documentary tax statutes. See Documentary Stamp Tax, P 9200060, 1994 WL 848080 (Okla. Tax Comm'n Jan. 6, 1994). In Documentary Stamp Tax, P 8800313, 1989 WL 251450 (Okla. Tax Comm'n Sept. 28, 1989), a partnership owned by family members transferred real property to the individuals at the request of their lender and in order to obtain refinancing. After the refinancing was obtained the members transferred the properties back to the partnership. The OTC concluded no sale occurred because no consideration was exchanged, the intent of the transfers was to effectuate the purpose of the partnership not to conclude a sale, therefore, the partnership did not purchase the properties and no documentary tax was due. The OTC relied on Berkeley Savings & Loan, supra, to reach that result. Finally, by rule, the OTC has determined that conveyances "from a constituent corporation to the new or continuing corporation" as the result of a merger or consolidation are exempt from documentary taxes. Okla. Admin. Code § 710:30-1-9(7).7 ¶27 An interest in real property is "sold" for purposes of the DSTA if the grantee of a "deed, instrument, or writing" pays "actual pecuniary value" for the conveyance. 68 O.S.2011 § 3201. If that consideration is paid, documentary taxes are due on the conveyance unless otherwise exempt. In the absence of such consideration, the transfer of legal title alone is not taxable. In determining whether "actual pecuniary value" is paid in the foreclosure context, we note that a sheriff's sale "seldom brings a property's fair market value. The predictable built-in loss is the difference between the fair market value of the property and the foreclosure sale proceeds." Founders Bank & Trust Co. v. Upsher, 1992 OK 35, ¶ 12, n.23, 830 P.2d 1355, 1362. If that difference is $100 or less, there can be no sale for documentary tax purposes. 68 O.S.2011 § 3201(A). As stated by the OTC in its Rule 9, a conveyance of real property "without consideration" is not subject to documentary taxes. Okla. Admin. Code § 710:30-1-9(1). IV.THE COUNTIES ARE NOT ENTITLED TO JUDGMENT ¶28 Consequently, evidence that the consideration for the conveyances at issue in this case exceeded $100 is essential to the Counties' claim that the properties were "sold" and that documentary taxes are due. Therefore, the fact that Homesales and FNMA were granted deeds in these foreclosure proceedings does not resolve the documentary tax issue. Nor is that issue resolved by the fact that certain post-foreclosure conveyances were made in the Gentry case. Further examination of each transaction is required to determine whether the interest conveyed was "sold" for purposes of the DSTA. Without proof that a sale occurred, the Counties cannot demonstrate, in the first instance, that documentary taxes were due and that they are entitled to judgment. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). A. The Homesales Deeds ¶29 In three of the foreclosure cases, Chase assigned its interest to Homesales during the confirmation hearings. The order confirming the sheriff's sale in each of those cases recites that Chase "in open court acknowledged receipt from Homesales, Inc. of good and valuable consideration. . . ." The summary judgment record shows that Homesales was a wholly owned subsidiary of Chase at the time of the transfer. The record does not show the amount of the "good and valuable consideration" exchanged between the parent corporation and its subsidiary. Because there is nothing in the summary judgment record to show whether the consideration paid by Homesales exceeded the statutory minimum, the district court could not, and we cannot determine whether the property involved in these transactions was "sold" for purposes of section 3201(A) of the DSTA. An appellate court cannot take notice of any document or evidentiary material which the trial court did not have. . . . In addition, it is not the duty of the appellate court on review to make first instance determinations of disputed law or fact issues. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d 581, 587 (citations omitted). Because the Counties have not established that the properties conveyed to Homesales were "sold," they have not shown that documentary taxes are due and that they are entitled to judgment with respect to these conveyances. B. The FNMA Deed ¶30 Based on the documents in the summary judgment record, Chase is entitled to the inference that FNMA purchased the Gentry loan from the loan originator, Irwin Mortgage Corporation, that Chase acquired the rights to service this loan from FNMA and that Chase acted as FNMA's agent in the foreclosure action. At the confirmation hearing in the Gentry foreclosure, Chase also assigned its interest in the property to FNMA "for good and valuable consderations [sic]." However, the summary judgment record regarding the Chase/FNMA transaction suffers from the same defect discussed with respect to the Homesales deeds. The Counties have failed to show that FNMA paid Chase more than $100 for this conveyance. Further, according to OTC Rule 9, a conveyance from an agent to its principal "conveying realty purchased for and with funds of the principal" is not subject to documentary tax. Okla. Admin. Code § 710:30-1-9(3). It is a well settled rule that the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, while not controlling, is entitled to great weight and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous. Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 10, 714 P.2d 1013, 1015 (citing McCain v. State Election Bd., 1930 OK 323, 289 P. 759). This Court followed that well-settled rule in Johnston v. Oklahoma Tax Comm'n, supra, adopting the OTC's practice of calculating documentary taxes on the cash paid plus the amount of any purchase money mortgage granted as consideration for a conveyance of real property. And, we do so again here with respect to the OTC's Rule regarding conveyances between agents and principals. The Counties have failed to show that the Gentry property was not purchased with FNMA's money and that Chase did not assign its interest at the confirmation hearing as agent for its principle, FNMA. Consequently, the Counties are not entitled to judgment based on the Chase/FNMA transaction. C. The Gentry Deeds ¶31 Subsequent to taking title to the Gentry property, FNMA executed a Special Warranty Deed transferring the property to Homesales. Homesales then executed a Quit Claim Deed conveying the property to Irwin Mortgage. Both of these deeds recite that the consideration was "TEN Dollars ($10.00) and other good and valuable consideration." The deeds also state that the transactions are exempt from documentary taxes pursuant to Title 68 O.S. §3202(3): "Deeds which without additional consideration, confirm, correct, modify or supplement a deed previously recorded." Chase argues that Homesales acted as an intermediary to facilitate a repurchase of the Gentry loan by Irwin Mortgage pursuant to a preexisting agreement with FNMA. Cf., Berkeley, 301 F. Supp. 22, (regarding obligation to repurchase loan in case of default as reflecting the parties' intent not to affect a sale). That agreement, however, is not in the record. More importantly, the summary judgment record does not show the amount of the "other good and valuable consideration" paid for these conveyances. In the absence of that evidence, the Counties have failed to address all material facts necessary to establish their right to judgment based on the special Warranty Deed and Quit Claim Deed. CONCLUSION ¶32 Although the Counties are not authorized to prosecute violations of the Documentary Stamp Tax Act, they do have standing to challenge the exemptions from documentary taxes claimed in this case. However, because the Counties have failed to prove that consideration in excess of $100 was paid for any of the conveyances the district court found were taxable, they have failed to prove that any of the properties subject to those conveyances was "sold" for purposes of section 3201 of the Documentary Stamp Tax Act. Absent proof that a sale occurred, the Counties are not entitled to judgment. Because the Counties have failed to prove that a sale occurred, we do not address the validity of any exemption claimed with respect to the conveyances at issue in this case.8 The interlocutory order appealed is reversed and this case is remanded for further proceedings consistent with this Opinion. CERTIORARI PREVIOUSLY GRANTED; CERTIFIED INTERLOCUTORYORDER OF THE DISTRICT COURT REVERSED AND CASE REMANDED FORFURTHER PROCEEDINGS. ¶33 REIF, V.C.J., WATT, EDMONDSON, GURICH, and FISCHER, S.J., concur. ¶34 KAUGER, J., concurs in part; dissents in part. ¶35 WINCHESTER, TAYLOR, and COMBS (by separate writing), JJ., dissent. ¶36 COLBERT, C.J., recused. FOOTNOTES 1 After this Court granted certiorari, and in response to offers of judgment made pursuant to 12 O.S.2011 §1101.1, the trial court entered judgment in favor of Murray County and Johnston County against district court defendants Wells Fargo Bank, N.A., Flagstar Bank, FSB and Aurora Loan Services, LLC. None of these entities are parties to this appeal. 2 The Defendants previously filed with this Court an Application to Assume Original Jurisdiction and Petition for Writ of Mandamus or Prohibition on July 11, 2012, case no. 110,868. This Court denied the application and declined to assume jurisdiction. 3 The Counties contend that, in part, their suit is based on fraudulent representations made by the Defendants. The Counties argue that the fraud occurred when the Defendants misrepresented to the County Clerks that they were entitled to exemptions for the conveyances made subsequent to the entry of the judgments in the foreclosure actions in violation of the DSTA. The Counties do not alleged any fraud by Chase in procuring the foreclosure judgments. Further, our determination in Part I of this Opinion that the Counties do not have authority to prosecute violations of the DSTA disposes of the Counties' argument that they are permitted to assert a "fraud claim" in this litigation. One convicted of violating the DSTA is subject to the fines and penalties set out in 68 O.S.2011 § 3206. A county clerk's role in that process is specifically defined in paragraph D of that statute: "Should the county clerk become aware that the provisions of the documentary stamp law have or might have been violated, he or she shall immediately report the facts to the Oklahoma Tax Commission." 4 The transcript of the Hearing on the Motion to Dismiss held on May 16, 2012, provides at p. 21-22: THE COURT: Well, no, 3206 says any person who willfully fails to purchase or affix the exact amount of stamps upon conviction be convicted of a thousand dollar fine and one year in jail and then it has - section D it says, "should the County Clerk become aware of the provisions of the documentary stamp law have or might have been violated, he or she shall immediately report the facts to the Oklahoma Tax Commission." MR. ROBERTS: And that's been done. THE COURT: That's been done. Is the Tax Commission - MR. ROBERTS: The District Attorney -- THE COURT: -- reviewing that? MR. ROBERTS: Excuse me. The District Attorney prior to filing this action and prior to my being hired by the counties, with approval of the District Attorney, did make that contact. They have taken no action, but there's nothing -- there's been no citation law that says, the exclusive remedy is a criminal prosecution. . . . 5 As Chase points out, the Oklahoma Tax Code provides an administrative remedy for it to resolve this tax issue that is bypassed by the Counties' prosecution of this case. Nonetheless, this Court has recognized that in limited circumstances, exhaustion of the OTC's administrative process is not always required. See, e.g., Glass, Oklahoma Tax Comm'n v. Smith. 6 The documentary tax statutes applied in Jim Walter Homes were renumbered by Laws 1988, ch. 162, § 160, eff. Jan. 1, 1992: Laws 1991, ch. 338, § 2, eff. Jan. 1, 1992, and are essentially identical to the DSTA statutes at issue in this case with two exceptions: the addition of a definition of "consideration" to section 3201 and the expansion of the mortgage foreclosure deed exemption in section 3202(13) to included "holders" of the mortgage in addition to "original grantors." 7 Other state courts construing similar or identical definitions of "consideration" in documentary tax statutes have reached the same result. Crescent Miami Ctr., LLC v. Florida Dep't of Revenue, 903 So. 2d 913 (Fla. 2005) (grantor's wholly owned limited liability company was not "purchaser" for purposes of documentary tax regarding transfer of real property where no consideration was exchanged and beneficial ownership was not changed); ZIRP-IC, LLC v. Hennepin County, Nos. 31282, 04-02759, 2005 WL 937432 (Minn. Tax Ct. Regular Div. April 21, 2005) (no documentary tax due on deed in lieu of foreclosure because the value of the property was less than the mortgage balance, therefore the consideration for the transfer, a negative number, did not exceed the statutory minimum for imposing documentary tax); Real Estate Transfers -- Documentary Tax, TAM-88-15, 1988 WL 232627 (S.C. Tax. Comm'n) (deed conveying real property from one corporation to another corporation not subject to documentary tax where both corporations were owned by the same individual and no consideration was paid). 8 We also do not address Chase's argument, raised for the first time in this appeal, that the Counties' attempt to collect documentary taxes is barred by the applicable statute of limitations. Generally, this Court does not reach issues the appealing party fails to raise in the trial court and we decline to do so here. Bottles v. State ex rel. Oklahoma State Bd. of Med. Licensure and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471 , 472. See also, Jackson v. Jackson, 2002 OK 25, ¶ 12, n.12, 45 P.3d 418, 425. But, we do so without prejudice to Chase's assertion of this argument in the district court on remand. COMBS, J., with whom TAYLOR, J., joins, dissenting: ¶1 In this cause concerning alleged violations of the Documentary Stamp Tax Act (DSTA), 68 O.S. 2011 §§3201-3206, the majority determines that although the plaintiffs do not have authority to enforce the provisions of the DSTA, the plaintiffs have standing to seek declaratory relief under Oklahoma's declaratory judgment statute, 12 O.S. 2011 §§1651-1657. Because I disagree with the majority's assertion that the plaintiffs possess standing in this cause, I respectfully dissent. I.The Plaintiffs Do Not Have Standing Because Their Injury Cannot be Redressed by a Favorable Court Decision. ¶2 The question of whether a party possesses standing has traditionally been formulated by this Court as whether a party has sufficient interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Indep. School Dist. No. 5 of Tulsa v. Spry, 2012 OK 98, ¶2, 292 P.3d 19; Estate of Doan v. First Nat'l Bank and Trust Co. of Tulsa, 1986 OK 15, ¶7, 727 P.2d 574; Indep.School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶8, 639 P.2d 1233. At a minimum, standing is composed of three elements, which are: 1) a legally protected interest which must have been injured in fact, i.e., an injury which is actual, concrete and not conjectural in nature; 2) a causal nexus between the injury and the complained of conduct; and 3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable court decision. J.P. Morgan Chase Bank, Nat'l Assoc. v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62; Cities Services Co. v. Gulf Oil Co., 1999 OK 16, ¶3, 976 P.2d 545. This Court has also phrased the standing requirement in other terms, noting that: A party whose standing is challenged must show (1) actual or threatened injury, (2) for which relief can be given, and (3) the interest to be protected is "within a statutorily or constitutionally protected zone". Oklahoma Public Employees Ass'n v. Oklahoma Dept. of Central Services, 2002 OK 71, ¶16, 55 P.3d 1072 (quoting In Re Initiative Petition No. 363, 1996 OK 122, ¶13 n. 29, 927 P.2d 558). ¶3 I do not dispute that the plaintiffs have alleged sufficient injury to a protected interest and a causal nexus to the defendants' conduct exists to satisfy the first and second required elements of standing. The loss of revenue to the plaintiffs due under 68 O.S 2011 §3204 and caused by defendants' claimed exemptions from the purchase of documentary stamps results in actual, pecuniary harm. However, I do not believe that the plaintiffs have demonstrated the third requirement: redressability. ¶4 The specific harm to the plaintiffs is pecuniary. Due to the actions of the defendants, the plaintiffs are not getting the share of revenue from the sale of documentary stamps they believe they are owed pursuant to the DSTA, 68 O.S. 2011 §3204, because the defendants allegedly wrongly claimed an exemption. As the majority's opinion states, the plaintiffs "filed this suit to enforce section 3201and collect the documentary taxes they contend are due." Majority Opinion, at ¶8. ¶5 However, the first section of the majority's opinion is dedicated to a discussion of why the plaintiffs are not entitled to enforce the provisions of the DSTA, because the authority to do so lies with the Oklahoma Tax Commission. The majority lists several reasons justifying its position, including: 1) state policy provides for uniform procedures and remedies with respect to all state taxes; 2) the plaintiffs' position on enforcement conflicts with the Legislature's general statutory procedure for collecting unpaid taxes; and 3) rules promulgated by the Oklahoma Tax Commission confirm that the plaintiffs lack direct enforcement authority. The majority concludes: "[w]e will not read into the DSTA authority for the Counties to prosecute violations of the Act when the Legislature has declined to do so." Majority Opinion, at ¶15. ¶6 Fundamentally, an assessment of standing is not a decision on the case's merits. Rather, it is a determination whether the plaintiff is the proper party to seek adjudication of the asserted issue. Gulf Oil. Corp., 1999 OK 16, ¶5; Toxic Waste Impact Group v. Leavitt, 1994 OK 148, ¶9, 890 P.2d 906. The asserted issues in this cause are whether taxes are due pursuant to the DSTA and whether exemptions from those taxes were validly claimed. Based on the majority's analysis in part one of its opinion, the plaintiffs are not the proper party to seek adjudication of these issues. The proper parties to enforce the tax statutes are the Oklahoma Tax Commission (Title 68 O.S. 2011 §§221 to 230) and the Attorney General (Title 68 O.S. 2011 § 250). II.This Cause is Distinguishable from Independent School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, 639 P.2d 1233. ¶7 The majority asserts that the plaintiffs inability to sue to enforce the DSTA, and hence, their inability to receive the monetary relief they desire by doing so, does not defeat their standing to seek some other form of relief. Specifically, the majority likens this cause to Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, 639 P.2d 1233. In Glass, a school district challenged a refund payable as the result of a tax exemption claimed by a taxpayer whose taxable personal property was located in the district. 1982 OK 2, ¶¶1-3. The school district sought a temporary and permanent injunction to prevent payment of the refund to the taxpayer, after the refund request was granted by the Tulsa County Board of Tax-Roll Corrections. Glass, 1982 OK 2, ¶6. The taxpayer argued that the school district lacked standing to sue, as 68 O.S. Supp. 1974 §2479 authorized only the taxpayer and the County Assessor to seek review of the Board's decision. Glass, 1982 OK 2, ¶8. ¶8 This Court determined that the school district possessed standing to seek an injunction to protect the wrongful disposition of its revenues, though in the end the Court also determined the school district was not entitled to an injunction. Glass, 1982 OK 2, ¶11. The majority in this cause asserts that Glass supports the position that the plaintiffs have standing, if not to enforce the DSTA, then to seek some other form of relief. However, Glass is distinguishable from the instant cause in more than one respect. ¶9 First, the school district in Glass never sought a statutory remedy it was not entitled to invoke. Rather, the school district in Glass prevailed on the question of standing because it sought equitable relief in the form of an injunction. This Court specifically stated that had the school district attempted to invoke 68 O.S. Supp. 1974 §2479, the taxpayer's position that the district did not have standing would have merit. This Court stated: Ford contends that the School District lacks standing to enjoin the refund because 68 O.S.Supp. 1974 § 2479 authorizes only the taxpayer and the County Assessor to seek review of the Board's decision. Ford's position would be tenable if the District sought to avail itself of the statutory remedy of a trial de novo. The issue is not under-assessment or non-assessment. The District is not appealing the decision of the Board, nor is it seeking a trial de novo. Rather, it seeks to prevent what it characterizes as an illegal refund of public funds which has been erroneously authorized by the Board. Glass, 1982 OK 2, ¶8 (footnotes omitted) (emphasis added). ¶10 Second, the equitable remedy sought by the school district in Glass would have been fully sufficient to remedy the injury it suffered. By granting the school district's request for an injunction to prevent the illegal payout of a refund, the court would have been able to prevent the loss of revenue to which the school district claimed it was entitled. It is here that redressability is an issue: "[i]t is not necessary to decide whether a litigant will ultimately be entitled to any relief in order to hold that the party has standing to seek judicial redress for his/her grievance" but the relief being sought must, if granted, be capable of remedying the injury. Glass, 1982 OK 2, ¶10. In this cause, the plaintiffs have not sought injunctive relief but instead seek enforcement of the DSTA in order to obtain the revenue to which they claim they are entitled. III.Because the Plaintiffs Cannot Sue to Enforce the DSTA, They Cannot Pursue a Declaratory Judgment that Serves No Purpose Other than to Further That Goal. ¶11 Having determined in this cause that the plaintiffs do not have authority to sue to enforce the provisions of the DSTA, the majority circumvents the problem of redressability by determining that the plaintiffs have standing to seek non-monetary relief pursuant to Oklahoma's declaratory judgment statute, 12 O.S. 2011 §§1651-1657, noting that when statutory relief is inadequate, equitable relief may be available. ¶12 Title 12 O.S. 2011 §1651 sets the parameters for the issuance of declaratory judgments in Oklahoma, and provides: District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. A declaratory judgment is merely a type of remedy, not an independent cause of action, and it does not extend the jurisdiction of a court where it would not otherwise exist. Conoco, Inc. v. State Dept. of Health of State of OK, 1982 OK 94, ¶18, 651 P.2d 125. Specifically, this Court stated in Conoco, Inc.: Such relief [a declaratory judgment] is especially useful in a case where a justiciable controversy between the parties exists and the plaintiff would be required to do or refrain from doing some action at his legal peril. It is merely a type of remedy which may be granted where a court already has jurisdiction over a particular cause. It cannot extend the jurisdiction of a court where it would not exist otherwise; and if a court lacks jurisdiction over a case, it cannot enter any rightful judgment. Conoco, Inc., 1982 OK 94, ¶18. Declaratory actions are meant to supplement rather than supersede other types of litigation. Restatement (Second) of Judgments § 33, comment C (1981). ¶13 This Court has long relied upon the axiom that what may not be done directly should not be allowed to be done indirectly. In Re Oklahoma Capitol Imp. Authority, 2012 OK 99, ¶12, 289 P.3d 1277; Large v. Acme Engineering and Mfg. Corp., 1990 OK 34, ¶8, 790 P.2d 1086; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶15, 679 P.2d 1296. A determination by this Court that the plaintiffs can seek a declaratory judgment that documentary stamp taxes are due from the defendants pursuant to 68 O.S. § 3201 and that the exemptions claimed by the defendants were unlawful is nothing more than an end-run around the basic determination that the plaintiffs are not permitted to sue to enforce the DSTA. Having determined that the plaintiffs cannot enforce the DSTA, it does not make sense to allow them to seek declaratory relief that could lead to nothing else but subsequent action by the plaintiffs to enforce the DSTA. ¶14 Declaratory relief serves no purpose other than to aid the plaintiffs in their quest to redress their original harm caused by alleged violations of the DSTA. Since the plaintiffs cannot sue to enforce the DSTA, a declaratory judgment that the DSTA has in fact been violated by the defendants does not help the plaintiffs.1 Further, 12 O.S. 2011 § 1651 specifically indicates that a court may refuse to issue a declaratory judgment where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. ¶15 Pursuant to the majority opinion, the plaintiffs will not be permitted to enforce the DSTA even if they received a declaratory judgment that the DSTA was violated by the defendants. This leads back to the redressability of the underlying harm giving rise to the plaintiffs cause: there is no likelihood that the plaintiffs' injury (their loss of revenue) will be redressed by a favorable court decision; there is only speculation. See J.P. Morgan Chase Bank, Nat'l Assoc. v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62; Cities Services Co. v. Gulf Oil Co., 1999 OK 16, ¶3, 976 P.2d 545. ¶16 Because the plaintiffs' harm is not redressable through declaratory relief or otherwise, they do not have standing to sue to enforce the DSTA, and they do not have standing to seek a declaratory judgment the only purpose of which is to further that end. The majority opinion would remand this cause back to the district court for a determination on the merits of the applicability of the DSTA, placing a heavy evidentiary burden on the plaintiffs to prove that the properties in question were sold within the meaning of 68 O.S. 2011 §3201. The resulting further litigation and expense is unnecessary and should be avoided, because the plaintiffs cannot attain the relief they seek. Because the plaintiffs lack standing to enforce the DSTA and lack standing to seek a declaratory judgment in furtherance of that end, it is not necessary to address the merits of the controversy. For this reason, I respectfully dissent. FOOTNOTES 1 Declaratory relief might be beneficial to the Oklahoma Tax Commission, but the Commission has never been made a party to this litigation.

bd670015-906d-4a85-b04a-f47f2d370e78

CDR Systems Corp. v. Oklahoma Tax Comm'n

oklahoma

Oklahoma Supreme Court

CDR SYSTEMS CORPORATION v. OKLAHOMA TAX COMMISSION2014 OK 31Case Number: 109886Decided: 04/22/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CDR SYSTEMS CORPORATION, Appellant, v. OKLAHOMA TAX COMMISSION, Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II, ON APPEAL FROM THE OKLAHOMA TAX COMMISSION ¶0 In September of 2008, Appellant CDR Systems Corporation entered into a stock purchase agreement to sell all of its assets. In August of 2009, CDR filed its 2008 Oklahoma Small Business Corporation Income Tax Return and claimed the Oklahoma Capital Gains Deduction for gains received from the sale. The Oklahoma Tax Commission denied the deduction claimed by CDR because CDR was not headquartered in Oklahoma for three years prior to the sale as required by 68 O.S. Supp. 2008 § 2358(D). The Court of Civil Appeals reversed and found the deduction violated the dormant commerce clause. Upon review, under the facts of this case, we find there is no discrimination against interstate commerce to which the dormant commerce clause applies. We also hold that even if the dormant commerce clause applies in this case, the deduction does not facially discriminate against interstate commerce, it does not have a discriminatory purpose, and the deduction has no discriminatory effect on interstate commerce. COCA OPINION VACATED; ORDER OF THE OKLAHOMA TAX COMMISSION AFFIRMED Thomas G. Ferguson, Jr., Walker, Ferguson & Ferguson, Oklahoma City, Oklahoma, Attorney for Appellant Douglas B. Allen, Larry Patton, Abby Dillsaver, & Elizabeth Field, Oklahoma Tax Commission, Oklahoma City, Oklahoma, Attorneys for Appellee Kiran A. Phansalkar & Daniel V. Carsey, Conner & Winters, L.L.P., Oklahoma City, Oklahoma, Attorneys for Amicus Curiae Council on State Taxation Frederick J. Nicely, Council on State Taxation, Washington, DC, Attorney for Amicus Curiae Council on State Taxation GURICH, J. ¶1 Most, if not all states, have tax incentives whose primary purpose is to attract business to the state and to promote economic development within the state.1 Oklahoma is no different.2 The Oklahoma Capital Gains Deduction was passed by the Legislature to promote significant business investment in Oklahoma's economy.3 Specifically, the deduction found in 68 O.S. Supp. 2008 § 2358(D)(2)(a)(3) ("deduction") is a tax incentive that allows a taxpayer to adjust its Oklahoma taxable income for qualifying gains receiving capital treatment that result from the "sale of all or substantially all of the assets of an Oklahoma company." "Oklahoma company", is defined as "an entity whose primary headquarters have been located in Oklahoma for at least three (3) uninterrupted years prior to the date of the transaction from which the net capital gains arise."4 ¶2 Although state tax incentives of this kind attempt to promote economic development within the state, certain types of tax incentives raise constitutional concerns because the U.S. Supreme Court has said that "'[n]o State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business."'" Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 403 (1984). In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), the U.S. Supreme Court avoided deciding the constitutionality of a state tax credit that incentivized corporations to do business in the state of Ohio, and instead, ruled the city and state taxpayers who challenged the tax credit lacked standing to bring the action. ¶3 Although the Supreme Court didn't directly weigh in on the issue in Cuno, it has said that there is a "delicate balancing of the national interest in free and open trade and a State's interest in exercising its taxing powers." Tully, 466 U.S. at 403. See also Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329 (1977). This "delicate balancing" requires a "case-by-case analysis and . . . such analysis has left '"much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation."'" Tully, 466 U.S. at 403 (citations omitted). The result in these types of cases often "turns on the unique characteristics of the statute at issue and the particular circumstances in each case." Boston Stock Exchange, 429 U.S. at 329. Facts & Procedural History ¶4 CDR Systems was incorporated in California in 1970 and manufactures polymer concrete and fiberglass handholes and pads for electric, water, and telephone company utilities.5 Eugene McGrane has been the sole shareholder of CDR since 1996. At the time of its sale in 2008, CDR was registered to do business in Florida, California, Michigan, Iowa, and Oklahoma, and its primary headquarters was located in Ormond Beach, Florida. CDR's operations in Oklahoma included a manufacturing facility in Waynoka, Oklahoma. ¶5 On September 18, 2008, CDR entered into a stock purchase agreement with Hubbell Lenoir City, Inc. to sell all of CDR's assets. Pursuant to the purchaser's election, the stock sale was treated as an asset sale under the Internal Revenue Code § 338(h)(10). CDR was bound by such election on its Oklahoma Small Business Corporation Income Tax Return.6 The assets that transferred on September 18, 2008, had been owned by CDR for more than three years. In August of 2009, CDR filed its 2008 Oklahoma Small Business Corporation Income Tax Return, claiming the Oklahoma Capital Gains Deduction for gains received from the $49,776,316 sale of CDR. The total gains received would have resulted in an exclusion from Oklahoma taxable income in the amount of $3,564,283.7 ¶6 The Compliance Division of the Oklahoma Tax Commission denied the deduction claimed by CDR because CDR was not headquartered in Oklahoma for three years prior to the sale as required by 68 O.S. Supp. 2008 § 2358(D).8 CDR protested the denial, claiming the statute violated the Privileges and Immunities Clause, the Equal Protection Clause, and the Commerce Clause of the U.S. Constitution. ¶7 The protest was tried to an ALJ on the briefs and stipulated facts. The ALJ denied the protest because the Division's adjustment complied with the statute, and the OTC was without authority to decide the constitutional validity of the tax statute. CDR timely appealed, and COCA found that CDR's Privileges and Immunities argument was without merit because the U.S. Supreme Court has held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause, citing Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 720 (1978). ¶8 COCA also found that CDR's only contention regarding its Equal Protection claim was that "[i]n other decisions the U.S. Supreme Court has recognized that states cannot discriminate against non-residents and based its decisions on violation of the Equal Protection Clause of the United States Constitution." COCA observed that CDR only cited one case for this proposition, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985), and that CDR provided no argument on its equal protection claim and did not show how application of the deduction violated equal protection. CDR did not petition for certiorari on either of these adverse rulings from COCA. As such, neither the Privileges and Immunities Clause nor the Equal Protection Clause is before this Court.9 ¶9 However, COCA found the deduction discriminated on its face against interstate commerce and its effects on interstate commerce were not evenhanded or incidental. As such, COCA concluded the deduction violated the dormant commerce clause. The OTC petitioned this Court for certiorari review on the issue of whether the statute is an unconstitutional violation of the dormant commerce clause. We granted certiorari on October 14, 2013. Standard of Review ¶10 In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. "Every presumption is to be indulged in favor of the constitutionality of a statute." Id. "It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition." Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204. "A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government." Id. In cases where the constitutionality of a state tax statute is at issue, the taxpayer bears the heavy burden of proving the statute is unconstitutional. EOG Res. Mktg., Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶ 13, 196 P.3d 511, 519. The Dormant Commerce Clause Does Not Apply in this Case ¶11 Article 1, § 8 of the U.S. Constitution "expressly authorizes Congress to 'regulate Commerce with foreign Nations, and among the several states.'" Quill Corp. v. North Dakota By and Through Heitkamp, 504 U.S. 298, 309 (1992). The Commerce Clause "says nothing about the protection of interstate commerce in the absence of any action by Congress. Nevertheless . . . the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The Clause . . . 'by its own force' prohibits certain state actions that interfere with interstate commerce." Id. "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby 'imped[es] free private trade in the national marketplace.'" Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (citations omitted). "No State, consistent with the Commerce Clause, may 'impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business." Boston Stock Exchange, 429 U.S. at 329. The "Commerce Clause does not, however, eclipse the reserved 'power of the States to tax for the support of their own governments.'" Id. at 328. ¶12 In Tracy, 519 U.S. at 282, "Ohio levied a 5% tax on the in-state sales of goods, including natural gas, and it imposed a parallel 5% use tax on goods purchased out-of-state for use in Ohio." "[N]atural gas sales by 'natural gas compan[ies]'" were exempted from all state and local sales taxes. Id. Local natural gas utilities located in Ohio satisfied the definition of natural gas company under Ohio law, but "non-LDC gas sellers, such as producers and independent marketers" did not fall under this definition, and the state denied the exemption to such producers and independent marketers. Id. ¶13 The Tax Commissioner of Ohio applied the general use tax to General Motors, who "bought virtually all the natural gas for its Ohio plants from out-of-state marketers, not LDC's." Id. at 285. General Motors challenged the tax and argued that "Ohio's differential tax treatment of natural gas sales by marketers and regulated local utilities constitute[d] 'facial' or 'patent' discrimination in violation of the Commerce Clause." Id. at 287. General Motors argued that "by granting the tax exemption solely to LDC's, which are in fact all located in Ohio, the State has 'favor[ed] some in-state commerce while disfavoring all out-of-state commerce." Id. at 288. ¶14 The U.S. Supreme Court upheld the Ohio use tax exemption and found that the LDC's provided a product consisting of gas bundled with services and protections, which was different from the unbundled natural gas provided by independent gas marketers. Such difference in products "raise[d] a hurdle for GMC's claim that Ohio's differential tax treatment of natural gas utilities and independent marketers violates our 'virtually per se rule of invalidity,' prohibiting facial discrimination against interstate commerce." Id. at 297-98. The Court stated: "Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities. Although this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or other regulatory differential would not serve the dormant Commerce Clause's fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors. Id. at 298-99 (emphasis added).10 The Court went on to quote from H.P. Hood & Sons, Inc. v. Du Mond11 : Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his export, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. Tracy, 519 U.S. at 300-01 (emphasis added). ¶15 The Court concluded: "Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply. The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such." Id. at 300 (emphasis added).12 ¶16 In the case before us, as the OTC points out, the deduction does not target any particular industry or market. Rather, the deduction is available to a qualifying entity participating in any market or industry regardless of whether that entity participates in interstate commerce or intrastate commerce. There is no common market in which substantially similar entities compete under the design of the statute. Entities qualifying for the deduction will likely continue to serve different markets regardless of whether the deduction is available. When asked at oral argument how this particular deduction discriminated against interstate commerce, CDR could not articulate how the deduction discriminates against interstate commerce or even how it affects interstate commerce. CDR makes no assertion that a substantially similar entity that also produced handholes and who had its primary headquarters in Oklahoma received the deduction upon a sale of its assets. ¶17 In fact, the deduction at issue in this case is "quite different from the more familiar targets of Commerce Clause attacks, which, like tariffs, either protect local businesses from multistate competitors or extract tax revenues disproportionately from out-of-state businesses. Whereas the out-of-state challenger to these sorts of provisions can convincingly complain that the state unfairly excluded or penalized outsiders, such pleas are far less compelling when the challenged provision is instead designed to invite, even to entice, the outsiders in."13 Without any actual or prospective competition in a single market, there is no negative impact on interstate commerce that results from the application of this deduction and no discrimination against interstate commerce to which the dormant commerce clause applies. Even if the Dormant Commerce Clause Applies in this Case, the Taxpayer Has Failed to Overcome the Heavy Burden of Proving this Deduction is Unconstitutional 1. The Deduction Does Not Facially Discriminate Against Interstate Commerce ¶18 Section 2358(D) treats all taxpayers the same. The deduction is available to "any corporation, trust or estate"14 whose gains meet the statutory requirements regardless of whether the company is considered an in-state or out-of-state company. As the OTC pointed out at oral argument, a company domiciled here but that does not have its primary headquarters here will not be eligible for the deduction. Similarly, a company that has its primary headquarters in the state but that hasn't been in existence for three years prior to its sale will not be eligible for the deduction. ¶19 CDR relies on the U.S. Supreme Court's decision in Fulton Corp. v. Faulkner, 516 U.S. 325 (1996), to support its position that the deduction at issue in this case facially discriminates against interstate commerce. In Fulton, the Court invalidated North Carolina's "'intangibles tax'" on a fraction of the value of corporate stock owned by North Carolina residents, a tax that was inversely proportional to the corporation's exposure to the state's income tax. Id. at 327-28. The tax was assessed at a stated rate, but residents "were entitled to calculate their tax liability by taking a taxable percentage deduction equal to the fraction of the issuing corporation's income subject to tax in North Carolina." Id. at 328. So, stock in a corporation doing no business in North Carolina was taxable on 100% of its value, and stock in a corporation doing all its business in North Carolina was not taxed at all. Id. ¶20 In Fulton, the Secretary of Revenue of North Carolina did not dispute that the statute was facially discriminatory. The secretary "relie[d] instead on the compensatory tax defense." Id. at 333. Thus, the issue in Fulton was "whether the taxable percentage deduction [could] be sustained as compensatory." Id. at 334. The Fulton Court rejected North Carolina's defense and found the intangibles tax facially discriminated against interstate commerce, stating: "A regime that taxes stock only to the degree that its issuing corporation participates in interstate commerce favors domestic corporations over their foreign competitors in raising capital among North Carolina residents and tends, at least, to discourage domestic corporations from plying their trades in interstate commerce." Id. at 333. ¶21 The OTC, in the case before us, certainly does not concede that the deduction facially discriminates against interstate commerce. Regardless, Fulton is distinguishable from the present case because the taxing scheme in Fulton actively discouraged participation in interstate commerce by tying tax liability directly to the proportion of in-state versus out-of-state economic activity. However, the deduction in this case does not calculate tax liability based on the proportion of in-state activity to out-of-state activity. Rather, taxpayers subject to Oklahoma income tax receive the deduction for investing in Oklahoma's economy. The degree to which the entity generating the gains participated in out-of-state activity, i.e., interstate commerce, is not relevant to whether the entity qualifies for the deduction. CDR has not, and cannot, argue that the amount of business it did in California, Michigan, Iowa, or Florida somehow affected whether it received the deduction on its Oklahoma income tax liability. CDR cannot point to any language in the statute that calculates tax liability based on the proportion of in-state activity to out-of-state activity. ¶22 Westinghouse Elec. Corp. v. Tully, 466 U.S. 388 (1984) is also distinguishable. In that case, the New York Legislature enacted a franchise tax statute requiring the consolidation of the receipts, assets, expenses, and liabilities of a subsidiary Domestic International Sales Corporation with those of its parent corporation. Id. at 393. "In an attempt to 'provide a positive incentive for increased business activity in New York State,' however, the legislature provided a 'partially offsetting tax credit,'" which was limited to gross receipts from export products "'shipped from a regular place of business of the taxpayer within [New York].'" Id. at 393. ¶23 The Court invalidated the tax credit and was specifically concerned about the statute's effect on activities in other states. The tax credit "ha[d] the effect of allowing a parent a greater tax credit on its accumulated DISC income as its subsidiary DISC move[d] a greater percentage of it shipping activities into the State of New York." Id. at 400. More concerning for the Court was that "the adjustment decrease[d] the tax credit allowed to the parent for a given amount of its DISC's shipping activity conducted from new York as the DISC increase[d] its shipping activities in other States." Id. "[N]ot only [did] the New York tax scheme 'provide a positive incentive for increased business activity in New York State, but also it penalize[d] increases in the DISC's shipping activities in other States." Id. at 400-01 (citations omitted) (emphasis added). ¶24 Unlike in Tully, in Oklahoma, a company does not disqualify for the deduction because it increases its activities in another state. As the OTC points out, nothing in the statute prevents companies from simultaneously claiming exemptions they may be entitled to in other states for a sale of all or substantially all of their assets. The deduction is a tool used by the state to compete for business investment in Oklahoma's economy by granting the tax deduction to both in-state and out-of-state businesses based on the extent of their activities in the State of Oklahoma. The deduction does not penalize the out-of-state activities of corporations doing business in Oklahoma. The deduction does not discriminate against interstate commerce on its face.15 2. The Deduction Does Not Have a Discriminatory Purpose ¶25 The Oklahoma Capital Gains Deduction was passed by the Legislature to promote significant business investment in Oklahoma's economy. The U.S. Supreme Court has said that "[t]he modern law of what has come to be called the dormant Commerce Clause is driven by concern about 'economic protectionism--that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.'" Davis, 553 U.S. at 337-38 (emphasis added).16 Encouraging investment in Oklahoma's economy is not economic protectionism because the deduction in no way burdens out-of-state competitors; rather, the deduction is a mechanism to entice those out-of-state companies to locate in state. ¶26 In Trinova Corp. v. Michigan Dep't of Treasury, 498 U.S. 358 (1991), the U.S. Supreme Court upheld the constitutionality of Michigan's single business tax. Michigan's single business tax was a value added tax levied against entities having business activity within the state. Id. at 362. A taxpayer doing business both in and out of the state determined its apportioned tax in Michigan based on among other things, its business activity attributable to Michigan, including its Michigan payroll, its property located in Michigan, and its Michigan sales. Id. at 367-68. ¶27 The Court held the statute was not facially discriminatory. Trinova maintained that the single business tax discriminated against interstate commerce because the statute had a discriminatory purpose. Trinova relied on a statement by the Governor of Michigan that the tax was enacted to "'promote the development and investment of business within Michigan.'" Id. at 385. The Court found: "This statement helps Trinova not at all. It is a laudatory goal in the design of a tax system to promote investment that will provide jobs and prosperity to the citizens of the taxing State. States are free to 'structur[e] their tax systems to encourage the growth and development of intrastate commerce and industry.'" Id. at 385-86 (emphasis added). See also Boston Stock Exchange, 429 U.S. at 327 ("Our decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State."). ¶28 As was the case in Trinova, CDR has presented no evidence "to demonstrate an impermissible motive" on the part of the State of Oklahoma in enacting this particular deduction. Trinova, 498 U.S at 386. Nothing in the record indicates this deduction was passed to discriminatorily tax products manufactured in another state or to discriminatorily tax the business operations performed in any other state. As such, the deduction does not have a discriminatory purpose. 3. The Deduction Has No Discriminatory Effect on Interstate Commerce ¶29 In Boston Stock Exchange, the Court found New York's transfer tax on securities transactions violated the commerce clause where transactions involving out-of-state securities sales were taxed more heavily than transactions involving a sale of securities within the state. Boston Stock Exchange, 429 U.S. at 336. The Court found the statute "foreclose[d] tax-neutral decisions" by forcing a nonresident contemplating the sale of securities to choose between two possible tax burdens. Id. at 331. "[T]he choice of exchange by all nonresidents . . . [was] not made solely on the basis of nontax criteria." Id. "[T]he seller [could not] escape tax liability by selling out of State, but [could] substantially reduce his liability by selling in State. The obvious effect of the tax [was] to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges." Id. ¶30 CDR has never argued that this deduction somehow precluded it from making a tax-neutral decision with respect to its decision to sale its assets. CDR's decision to maintain its primary headquarters in Florida was because the owner lived in Florida and it was the most practical location. Additionally, CDR revealed at oral argument it has been in Oklahoma since around 1986 and did not initially come to Oklahoma because of this particular tax incentive or any other tax incentive provided for in the Oklahoma statutes. All decisions by CDR were made solely on the basis of nontax criteria. On the record before us, the deduction does not preclude tax-neutral decision-making as the Court was concerned about in Boston Stock Exchange. ¶31 In Pike v. Bruch Church, Inc., 397 U.S. 137, 139 (1970), Bruce Church, Inc., grew cantaloupes in Parker, Arizona. Because the company lacked packing sheds in Parker, it transported the cantaloupes to its nearby facilities in California, where the cantaloupes were sorted, inspected, packed, and shipped in containers bearing the name of the California packer. Id. The official charged with enforcing the Arizona Fruit and Vegetable Standardization Act, which was designed to prevent deceptive packaging, entered an order prohibiting the company from shipping its cantaloupes outside the state unless they were packed in containers in a manner approved by the official to ensure the cantaloupes could be identified as of Arizona origin. Id. at 138. The company brought suit and challenged the constitutionality of the order, which would have had the effect of requiring the company to build packing facilities in or near Parker, Arizona, at a cost of about $200,000. Id. at 140. ¶32 The U.S. Supreme Court found the official's order issued under the Arizona statute unconstitutionally burdened interstate commerce because the "[s]tate's tenuous interest in having the company's cantaloupes identified as originating in Arizona [could not] constitutionally justify the requirement that the company build and operate an unneeded $200,000 packing plant in the [s]tate." Id. at 145. The Court went on: "[T]he Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home [s]tate that could more efficiently be performed elsewhere." Id. ¶33 In the case before us, the record is void of any evidence that CDR considered relocating so as to receive this deduction when it sold its assets. CDR has never alleged that it did not relocate because the relocation would have been financially burdensome or that relocation was impossible because operations could be performed more efficiently in Florida. In Pike, the company faced imminent loss of its anticipated 1968 cantaloupe crop in the amount of $700,000 if it was forced to build a packing facility in Arizona. The record in this case simply does not rise to the level of coercive relocation demonstrated in Pike. Although CDR argues the primary headquarters requirement discriminates against interstate commerce, hypothetical speculation about the cost an out-of-state company might incur in locating its primary headquarters in Oklahoma, without more, cannot support a determination that this deduction has the effect of discriminating against interstate commerce.17 ¶34 The deduction at issue in this case has a legitimate purpose.18 As discussed above, structuring the state's tax system to encourage the growth and development of intrastate commerce and industry is a legitimate purpose. See Trinova, 498 U.S. at 385-86. But as the OTC also pointed out at oral argument, the state's jurisdiction to tax property and income is limited to that which is either owned in the state or else conducted in the state. For the State of Oklahoma to levy a tax on intangible property, the locus of that property must be in Oklahoma. Counsel for OTC explained that the main intangible involved in the sale of assets by CDR was goodwill. The locus of intangible property, i.e. goodwill, is generally the primary headquarters of the company. Thus, the primary headquarters requirement ensures that the gains which qualify for the deduction, namely intangible property, have some nexus to property actually within Oklahoma's taxing jurisdiction. The State of Oklahoma is not obligated to permit a deduction for income it cannot tax.19 ¶35 Additionally, as the OTC points out, the Legislature could have imposed a more burdensome means of promoting significant business investment in Oklahoma's economy. It could have required companies to be domiciled in Oklahoma to receive the deduction or to incorporate in Oklahoma to receive the deduction or to operate only in the State of Oklahoma to receive the deduction. Instead, the Legislature chose the three-year primary headquarters requirement to promote significant business investment in Oklahoma's economy. Such a determination is a policy consideration left to the Legislature. ¶36 Even if CDR could prove this particular deduction somehow burdens interstate commerce, we would be unable to reliably determine whether the burdens imposed on interstate commerce by this deduction are clearly excessive in relation to its local benefits. Disagreement exists about whether state tax incentives designed to promote investment in a state's economy actually benefit the state.20 The U.S. Supreme Court has said that courts are "institutionally unsuited to gather facts upon which economic predictions can be made,"21 and are "'poorly equipped to evaluate with precision the relative burdens of various methods of taxation.'"22 Again, we leave the cost-benefit analysis of this particular state tax incentive to the Legislature. Conclusion ¶37 CDR has failed to carry the heavy burden of proving this particular deduction unconstitutionally discriminates against interstate commerce. We hold there is no discrimination against interstate commerce to which the dormant commerce clause applies, and that even if the dormant commerce clause applies in this case, the deduction does not facially discriminate against interstate commerce, it does not have a discriminatory purpose, and the deduction has no discriminatory effect on interstate commerce. The OTC properly denied the capital gains deduction to CDR. COCA OPINION VACATED; ORDER OF THE OKLAHOMA TAX COMMISSION AFFIRMED ¶38 REIF, V.C.J., KAUGER, WINCHESTER, TAYLOR, GURICH, JJ., concur. ¶39 COLBERT, C.J., WATT, EDMONDSON, COMBS (by separate writing)JJ., dissent. FOOTNOTES 1 See Philip M. Tatarowicz, Federalism, The Commerce Clause, and Discriminatory State Tax Incentives: A Defense of Unconditional Business Tax Incentives Limited to In-State Activities of the Taxpayer, 60 Tax Law. 835, 845-48 (2007) (discussing the array of different tax incentives offered to businesses to promote economic development within the states). 2 The deduction at issue in this case is just one of many tax incentives aimed at promoting investment in Oklahoma's economy. See, e.g., 68 O.S. Supp. 2010 § 2357.4; 68 O.S. Supp. 2008 § 2357.7; 68 O.S. §§ 3601-3612; 68 O.S. §§ 3701-3712; 68 O.S. §§ 3901-3910. 3 Answer Brief of Appellee at 8. 4 Section 2358(D) reads in its entirety: D. 1. For taxable years beginning after December 31, 2005, the taxable income of any corporation, estate or trust, shall be further adjusted for qualifying gains receiving capital treatment. Such corporations, estates or trusts shall be allowed a deduction from Oklahoma taxable income for the amount of qualifying gains receiving capital treatment earned by the corporation, estate or trust during the taxable year and included in the federal taxable income of such corporation, estate or trust. 2. As used in this subsection: a. "qualifying gains receiving capital treatment" means the amount of net capital gains, as defined in Section 1222(11) of the Internal Revenue Code, included in the federal income tax return of the corporation, estate or trust that result from: (1) the sale of real property or tangible personal property located within Oklahoma that has been directly or indirectly owned by the corporation, estate or trust for a holding period of at least five (5) years prior to the date of the transaction from which such net capital gains arise, (2) the sale of stock or on the sale of an ownership interest in an Oklahoma company, limited liability company, or partnership where such stock or ownership interest has been directly or indirectly owned by the corporation, estate or trust for a holding period of at least three (3) years prior to the date of the transaction from which the net capital gains arise, or (3) the sale of real property, tangible personal property or intangible personal property located within Oklahoma as part of the sale of all or substantially all of the assets of an Oklahoma company, limited liability company, or partnership where such property has been directly or indirectly owned by such entity owned by the owners of such entity, and used in or derived from such entity for a period of at least three (3) years prior to the date of the transaction from which the net capital gains arise, b. "holding period" means an uninterrupted period of time. The holding period shall include any additional period when the property was held by another individual or entity, if such additional period is included in the taxpayer's holding period for the asset pursuant to the Internal Revenue Code, c. "Oklahoma company", "limited liability company", or "partnership" means an entity whose primary headquarters have been located in Oklahoma for at least three (3) uninterrupted years prior to the date of the transaction from which the net capital gains arise, d. "direct" means the taxpayer directly owns the asset, and e. "indirect" means the taxpayer owns an interest in a pass-through entity (or chain of pass-through entities) that sells the asset that gives rise to the qualifying gains receiving capital treatment. (1) With respect to sales of real property or tangible personal property located within Oklahoma, the deduction described in this subsection shall not apply unless the pass-through entity that makes the sale has held the property for not less than five (5) uninterrupted years prior to the date of the transaction that created the capital gain, and each pass-through entity included in the chain of ownership has been a member, partner, or shareholder of the pass-through entity in the tier immediately below it for an uninterrupted period of not less than five (5) years. (2) With respect to sales of stock or ownership interest in or sales of all or substantially all of the assets of an Oklahoma company, limited liability company, or partnership, the deduction described in this subsection shall not apply unless the pass-through entity that makes the sale has held the stock or ownership interest or the assets for not less than three (3) uninterrupted years prior to the date of the transaction that created the capital gain, and each pass-through entity included in the chain of ownership has been a member, partner or shareholder of the pass-through entity in the tier immediately below it for an uninterrupted period of not less than three (3) years. 68 O.S. Supp. 2008 § 2358(D). 5 CDR is a corporation electing treatment as an "S Corporation" for tax purposes. Record on Appeal at 14. 6 See 68 O.S. Supp. 2013 § 2353(3) ("For all taxable periods covered by the Oklahoma Income Tax Act, the tax status and all elections of all taxpayers covered by the Oklahoma Income Tax Act shall be the same for all purposes material hereto as they are for federal income tax purposes except when the Oklahoma Income Tax Act specifically provides otherwise."); In the Matter of Income Tax Protest of Flint Res. v. State of Okla. ex rel. Okla. Tax Comm'n, 1989 OK 9, ¶ 19, 780 P.2d 665, 673 ("The language of § 2353(3) and (12), indicates that the Legislature intended that federal elections be controlling in determining Oklahoma taxable income."). 7 CDR included the gains received from the sale of CDR as a capital gain on its 2008 Form 1120S Federal Income Tax Return. Record on Appeal at 15. 8 See Record on Appeal at 3: Explanation of Adjustments: A) Taxes based on or measured by income shall not be allowed as a deduction in arriving at apportionable income (including Foreign Income Tax). 68 O.S. Section 2358(A)(5) and Permanent Rule 710:50-17-51(1). B) Deductions incurred in producing income of a non-unitary nature shall be allocated on the same basis as the income. 68 O.S. Section 2358(A)(4) and Permanent Rule 710:50-17-51(18). C) The deduction for qualifying gains receiving capital treatment on the sales of assets of a foreign based corporation has been denied. O.S. 68 Section 2358(D) and Permanent Rule 710:50-15-48. D) Net rental income from non-unitary property is to be separately allocated. 68 O.S. Section 2358(A)(4) and Permanent Rule 710:50-17-51(12). E) The sales factor shall include only sales (line 1, form 1120) and does not include sales or revenue from items other than sales to be included in the formula even though other types of income (royalties, interest, capital gains, and other income) are included in the apportioned income. 68 O.S. Section 2358(A)(5)(c) and Permanent Rule 710:50-17-71(1)(A). 9 Okla. Sup. Ct. R. 1.180(b). 10 See also Amerada Hess Corp. v. Dir. of Taxation, New Jersey Dep't of Treasury, 490 U.S. 66, 78 (1989) ("Whatever different effect the add-back provision may have on these two categories of companies results solely from differences between the nature of their businesses, not from the location of their activities.") (emphasis added); Alaska v. Arctic Maid, 366 U.S. 199, 204-05 (1961) (finding that owners of freezer ships and owners of cold storage facilities served separate markets, did not compete with one another, and thus could not be compared for Commerce Clause purposes). 11 336 U.S. 525, 539 (1949). 12 See also Exxon Corp. v. Governor of Md., 437 U.S. 117, 127-28 (1978) ("[T]he Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations."). 13 Peter D. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 Harv. L. Rev. 377, 412 (1996) (emphasis added). 14 68 O.S. Supp. 2008 § 2358(D) (emphasis added). 15 Where a state law facially discriminates against protected commerce, the U.S. Supreme Court has applied a virtually per se rule of invalidity. Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008). If a state statute facially discriminates against interstate commerce, the statute "will survive only if it 'advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.'" Id. "In this context, 'discrimination' simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). This strictest of strict scrutiny "is an extremely difficult burden, 'so heavy that facial discrimination by itself may be a fatal defect.'" Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 582 (1997). 16 Even if the statute does not discriminate on its face, if a discriminatory purpose is unavoidably clear, the statue will still be subject to strict scrutiny. Amerada Hess Corp., 490 U.S. at 75-76 (citing Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984)). 17 If a statute has the effect of unduly burdening interstate commerce, it may also be subjected to strict scrutiny. Amerada Hess Corp., 490 U.S. at 75 (citing American Trucking Ass'n, Inc. v. Scheiner, 483 U.S. 266 (1987)). 18 If a statute "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Pike, 397 U.S. at 142. 19 Further, CDR and the purchaser elected to treat the sale as a sale of assets for federal tax purposes. Under Oklahoma law, the taxpayer is bound by that election. While a deduction would have been allowed for the sale of real estate and equipment under § 2358(D)(2)(a)(1), CDR chose to pursue a course of action that maximized its tax savings by characterizing the sale as a sale of assets. 20 See Enrich, supra note 13 at 389-97. 21 Tracy, 519 U.S. at 308. 22 Fulton, 516 U.S. at 342. Even "'expert economists' may have difficulty determining 'whether the overall economic benefits and burdens of a regulation favor local inhabitants against outsiders." Tracy, 519 U.S. at 308-09 (quoting Michael E. Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1211 (1986)). COMBS, J., dissenting. ¶1 I disagree with the majority's holding that the deduction found in 68 O.S. Supp. 2007, § 2358 (D)(2)(a)(3), does not discriminate against interstate commerce. I believe this deduction is facially discriminatory or at least discriminatory in effect against interstate commerce and violates the dormant Commerce Clause of the United States Constitution. I also disagree with the majority's reliance on Gen. Motors Corp. v. Tracy, 519 U.S. 278, 117 S. Ct. 811, 136 L. Ed. 2d 761 (1997). The majority opinion asserts pursuant to Tracy, competition in a single market by similarly situated entities is a requirement for finding discrimination against interstate commerce. However, other cases discussed infra, such as Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796 (1996), found a dormant Commerce Clause violation when there was no competition in any single market. ¶2 The Commerce Clause, found in Article I, § 8, cl. 3 of the United States Constitution, provides in pertinent part, "[t]he Congress shall have Power . . . to regulate commerce . . . among the several states . . . ." The purpose of the Commerce Clause is to impose a limit on states' powers in order to create an area of free trade among the several states.1 The Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the states, but by its own force it created an area of trade free from interference by the states.2 The Commerce Clause is the source of constitutional limits imposed on a state's ability to interfere with interstate commerce through regulation and taxation; this implied restriction on state regulation of interstate commerce is known as the negative or "dormant commerce clause."3 This Court has previously determined the dormant Commerce Clause's limitations apply not just to taxation but also to discriminatory tax exemptions.4 ¶3 The United States Supreme Court has held when asked "to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers . . . the result turns on the unique characteristics of the statute at issue and the particular circumstances in each case. This case-by-case approach has left 'much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation.'" Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 328, 97 S. Ct. 599, 606, 50 L. Ed. 2d 514 (1977) (quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457, 79 S. Ct. 357, 362, 3 L. Ed. 2d 421 (1959)). The Court in Boston also found "the prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting individual States to enact laws that favor local enterprises at the expense of out-of-state businesses 'would invite a multiplication of preferential trade areas destructive' of the free trade which the Clause protects." Boston, 429 U.S. at 329 (quoting Dean Milk Co. v. Madison, 340 U.S. 349, 356, 71 S. Ct. 295, 299, 95 L. Ed. 329 (1951)). Boston also noted a state "tax may not discriminate between transactions on the basis of some interstate element."5 ¶4 The first step is to determine whether the challenged law discriminates against interstate commerce or whether it regulates evenhandedly with only incidental effects on interstate commerce.6 If the law is non-discriminatory (i.e., regulates evenhandedly) and has only incidental effects on interstate commerce, it will be found to be valid, unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.7 This test is known as the Pike balancing test. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). If a legitimate local purpose exists for the challenged law, then the question becomes one of degree; the extent of the burden tolerated will depend on the nature of the local interest involved and whether it could be promoted with a lesser impact on interstate activities.8 If the law regulates evenhandedly, then the burden of proof lies on the challenger to show the incidental burden on interstate commerce is excessive compared to the local interest.9 ¶5 By contrast, if a law discriminates against interstate commerce either "on its face or in its practical effect," it is subject to the strictest scrutiny.10 The Pike balancing test is not the appropriate legal standard in such a case.11 When considering the stated purpose of the challenged law, the court will not be bound by the name, description or characterization given by the legislature but will determine for itself its practical impact.12 Discrimination in this context simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.13 If the law discriminates against interstate commerce it will be found to be virtually per se invalid.14 Once a law is determined to be virtually per se invalid, that finding can only be overcome by a showing it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.15 In such a case, the burden of proof shifts to the governmental entity to prove the legitimacy of the purported local interest and the lack of an alternative means to further the local interest with less impact on interstate commerce.16 However, the state's burden is so heavy that facial discrimination by itself may be a fatal defect.17 ¶6 The deduction found in 68 O.S. Supp. 2007, § 2358 (D)(2)(a)(3) became effective January 1, 2008, pursuant to SB 685, 2007 Okla. Sess. Laws c. 346, § 3. The technical explanation of this deduction is as follows: a corporation, estate or trust is allowed to take a deduction from Oklahoma taxable income for the net capital gains received and included on its federal return that resulted from the sale of real property and/or tangible or intangible personal property located in Oklahoma that was part of a sale of all or substantially all the assets (asset sale), directly or indirectly, owned by an Oklahoma Company or by the owners of such Oklahoma Company and such property had been used or derived by such company at least 3 years prior to the sale. The statute provides, an Oklahoma company, limited liability company or partnership means an entity whose primary headquarters have been located in Oklahoma for at least three (3) uninterrupted years prior to the date of the transaction from which the net capital gains arise. For purposes of my dissent, I will refer to this as an "Oklahoma Company." In other words, if a corporation, estate or trust is in a position to receive net capital gains from an asset sale of an Oklahoma Company (having some ownership interest in an Oklahoma Company or is itself the Oklahoma Company) it can deduct those applicable net capital gains earned from the sale from its Oklahoma taxable income as long as it claimed such gains on its federal income tax return. The deduction is only allowed if the company selling all its assets had its primary headquarters in Oklahoma for 3 years prior to the sale and is therefore based on the level of activity that company initiated in the State. Here, even though CDR had made a significant investment in the State by operating a physical plant employing Oklahomans in Waynoka, it could not claim this deduction. CDR is a Subchapter S corporation with a single shareholder, who happens to choose to live in Florida; CDR's principle place of business.18 ¶7 In the present case, CDR is both the corporation claiming the deduction and the company that sold all its assets. The Tax Commission asserted if CDR were an Oklahoma Company it otherwise would have qualified for the deduction.19 However, CDR was denied this deduction because it did not have its primary headquarters in Oklahoma. CDR argued the primary headquarters requirement discriminates against interstate commerce on its face and in effect pursuant to Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977). In Complete Auto the Supreme Court reasoned that in previous cases concerning the Commerce Clause, it has: considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State. Complete Auto Transit, Inc. v. Brady, 430 U.S. at 279 (emphasis added). These considerations make up the four-prong Complete Auto test.20 CDR argued the deduction does not meet the third prong of this test. ¶8 CDR also asserted in its Response to Petition for Certiorari that the issue is "not merely whether a state tax provision discriminates against non-resident taxpayers; the standard is whether such a provision 'taxes a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.'" (Quoting Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796 (1996)). CDR also relied on Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 332, n. 12, 97 S. Ct. 599, 608, n. 12, 50 L. Ed. 2d 514 (1977), wherein the Supreme Court noted a state tax "may not discriminate between transactions on the basis of some interstate element." CDR further asserted, a "State may no more use discriminatory taxes to assure that nonresidents direct their commerce to business within the State than to assure that residents trade only in intrastate commerce." Boston, 429 U.S. at 334-35. ¶9 The majority opinion asserts the deduction applies to any corporation, estate or trust and therefore does not facially discriminate against interstate commerce. It places the burden of proof on CDR under a Pike balancing test which determines whether any burden on interstate commerce is clearly excessive in relation to the putative local benefits. The majority opinion also concludes courts are ill-equipped to make such assessments. ¶10 Here, the deduction is only allowed if the company selling all or substantially all of its assets has its primary headquarters in Oklahoma for at least three years prior to the asset sale. The primary headquarters requirement makes the deduction one based upon the level of business a company conducts in Oklahoma. In its Answer Brief, the Tax Commission stated the self-evident purpose of this deduction is to "promote significant investment in Oklahoma's economy by offering incentives to those investing in companies doing business here. The end goal of requiring significant investment in Oklahoma is to retain that investment and any subsequent investment within the state, thus boosting the state's economy on a long-term basis." The goal is essentially to promote business in Oklahoma by offering a tax incentive to taxpayers investing in companies which have a significant presence in the state (primary headquarters). The question is whether or not the deduction has a discriminatory effect on interstate commerce. Similar tax schemes have been found to violate the Commerce Clause. ¶11 Unlike the majority opinion, I believe the United States Supreme Court cases of Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 104 S. Ct. 1856, 80 L. Ed. 2d 388 (1984) and Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796 (1996), are pertinent and applicable to this case. In Westinghouse Elec. Corp. v. Tully, 466 U.S. 388, 104 S. Ct. 1856, 80 L. Ed. 2d 388 (1984), New York enacted a franchise tax requiring the consolidation of the receipts, assets, expenses, and liabilities of a parent corporation with any of its subsidiary domestic international sales corporations (DISC). The tax was assessed against the parent corporation on the basis of the consolidated amounts. The tax statute also provided an offsetting tax credit. The credit was limited to gross receipts from export products shipped from a regular place of business of the taxpayer in New York. The Court found this taxing scheme had "the effect of treating differently parent corporations that are similarly situated in all respects except for the percentage of their DISC's shipping activities conducted in New York." Westinghouse Elec. Corp., 466 U.S. at 400. It determined the tax scheme not only provided an incentive for increased business activity in New York but it also would penalize increased shipping activity in other states. Id. at 401. ¶12 In finding a Commerce Clause violation, the Court relied upon the basic principle that the very purpose of the Commerce Clause is to create an area of free trade among the several states. Id. at 402. The Court quoted from its previous decisions holding "[n]o State, consistent with the Commerce Clause, may 'impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business.'" (Citations omitted). The Court found it has "struck down state tax statutes that encouraged the development of local industry by means of taxing measures that imposed greater burdens on economic activities taking place outside the State than were placed on similar activities within the State." Id. at 403-04 (citing Maryland v. Louisiana, 451 U.S. 725, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981) and Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 97 S. Ct. 599, 50 L. Ed. 2d 514 (1977)). While the Federal Government may grant tax advantages to those who produce in the United States, a state "may not encourage the development of local industry by means of taxing measures that 'invite a multiplication of preferential trade areas' within the United States in contravention of the Commerce Clause." Id. at 405 (citing Dean Milk Co. v. Madison, 340 U.S. 349, 356, 71 S. Ct. 295, 299, 95 L. Ed. 329 (1951)). The Court further found it made no difference that New York discriminated against business carried on outside the state by disallowing a tax credit rather than by imposing a higher tax; the discriminatory economic effect would be identical. Id. at 404. ¶13 The New York Tax Commission in Westinghouse argued even if the tax is discriminatory the burden it placed on interstate commerce was not of constitutional significance and the actual effect of the tax credit was only slight compared to the entire taxing scheme. Westinghouse Elec. Corp., 466 U.S. at 405. It asserted the credit was not intended to divert new activity into New York but rather to prevent the loss of economic activity already in the state at the time the tax was enacted. Id. at 406. The Supreme Court, however, determined "[w]hether the discriminatory tax diverts new business into the State or merely prevents current business from being diverted elsewhere, it is still a discriminatory tax that 'forecloses tax-neutral decisions and ... creates ... an advantage' for firms operating in New York by placing 'a discriminatory burden on commerce to its sister States.'" Id. at 406 (quoting Boston Stock Exch., 429 U.S. at 331). It found the state violated the prohibition in Boston "against using discriminatory state taxes to burden commerce in other States in an attempt to induce 'business operations to be performed in the home State that could more efficiently be performed elsewhere.'" Id. (quoting Boston Stock Exch., 429 U.S. at 336). The Court was concerned the taxing scheme would "impose an artificial rigidity on the economic pattern of the industry." Id. at 406 (quoting Pike 397 U.S. at 146). ¶14 In Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796 (1996), North Carolina levied an intangibles tax on the fair market value of corporate stock owned by residents of North Carolina or having a business, commercial, or taxable situs in the state. State residents, however, were allowed a tax deduction equal to the fraction of the issuing corporation's income that was subject to North Carolina corporate income tax; i.e., the more business the corporation did in North Carolina, the less tax the resident stockholder would have to pay. The Supreme Court found: A regime that taxes stock only to the degree that its issuing corporation participates in interstate commerce favors domestic corporations over their foreign competitors in raising capital among North Carolina residents and tends, at least, to discourage domestic corporations from plying their trades in interstate commerce. Fulton Corp., 516 U.S. at 333. The intangibles tax was based upon the amount of business a corporation participates in interstate commerce (the more business it does out of state, the more its stock is taxed); it favored corporations who do business in North Carolina by helping them to raise capital because their stocks would be more lucrative with North Carolina residents since they were not taxed as highly. The taxing scheme also discouraged domestic corporations from engaging in interstate commerce because the amount of interstate commerce they engaged in would subject their stock to more taxation. ¶15 The State suggested the tax was so small it would have no practical impact on interstate commerce; however, the Court noted "we have never recognized a 'de minimis' defense to a charge of discriminatory taxation under the Commerce Clause." Fulton Corp., 516 U.S. at 333, n.3 (quoting Maryland v. Louisiana, 451 U.S. 725, 760, 101 S. Ct. 2114, 2135, 68 L. Ed. 2d 576 (1981) ("[w]e need not know how unequal the Tax is before concluding that it unconstitutionally discriminates"); Associated Indus. of Mo. v. Lohman, 511 U.S. 641, 650, 114 S. Ct. 1815, 1822, 128 L. Ed. 2d 639 (1994) ("actual discrimination, wherever it is found, is impermissible, and the magnitude and scope of the discrimination have no bearing on the determinative question whether discrimination has occurred"). ¶16 The Court held there was no doubt the intangibles tax facially discriminated against interstate commerce. Fulton Corp., 516 U.S. at 333. It found facial discrimination "invokes the strictest scrutiny of any purported legitimate local purpose." Id. at 344 (quoting Hughes v. Oklahoma, 441 U.S. 322, 337, 99 S. Ct. 1727, 1737, 60 L. Ed. 2d 250 (1979)). Because the tax was facially discriminatory, the burden was on the state to show the tax achieved "a legitimate local purpose that cannot be achieved through nondiscriminatory means." Id. at 344 (quoting Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality of State of Or., 511 U.S. 93, 102, 114 S. Ct. 1345, 1352, 128 L. Ed. 2d 13 (1994)). The Court found the state did not meet this burden and further said "we doubt that such a showing can ever be made outside the limited confines of sales and use taxes . . . ." Fulton Corp., 516 U.S. at 344. ¶17 In the present case, the deduction seeks to attract and retain the business of a company's primary headquarters. If the company performs the business of a primary headquarters in Oklahoma then those who have an ownership interest in that company may receive a 100% deduction from an asset sale. On the other hand, if the company does not perform the business of a primary headquarters in Oklahoma, regardless of the nature and extent of other business investment in Oklahoma, then those who have an ownership interest in that company receive a 0% deduction from an asset sale. In effect, this amounts to an out-of-state primary headquarters tax. Earnings from asset sales of non-Oklahoma Companies, those having an out-of-state primary headquarters, are taxed at a greater rate than those for Oklahoma Companies. Oklahoma Companies also receive an advantage over non-Oklahoma Companies by appearing more lucrative to investors. This scheme is similar to the one found to be facially discriminatory in Fulton. ¶18 The Tax Commission asserted there is no interstate commerce discrimination because a company is not prohibited from having multiple headquarters in other states. It argued the dormant Commerce Clause is not violated here because the deduction does not require a business to operate in-state if it could operate more efficiently elsewhere. The majority opinion also determined the primary headquarters requirement is not as coercive as the law in Pike v. Bruce Church, 397 U.S. 137, 145, 90 S. Ct. 844, 849, 25 L. Ed. 2d 174 (1970). Even so, I disagree with the argument that the primary headquarters requirement does not require companies to perform operations in-state even though they may more efficiently operate elsewhere. In Pike v. Bruce Church, Inc., the Supreme Court said: For the Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal. Pike v. Bruce Church, Inc., 397 U.S. 137, 145, 90 S. Ct. 844, 849, 25 L. Ed. 2d 174 (1970) (emphasis added). See also Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 336, 97 S. Ct. 599, 610, 50 L. Ed. 2d 514 (1977). The primary headquarters requirement places a discriminatory burden on interstate commerce by inducing companies to move their primary headquarters to Oklahoma and discouraging companies in Oklahoma from moving their primary headquarters out-of-state, even if those functions could be more efficiently performed elsewhere. ¶19 Although, it is true the deduction does not prohibit a company from having additional headquarters out-of-state, it still requires the primary headquarters be located in Oklahoma. The term "primary headquarters" is not defined in the statute, but surely, there is a difference in the functions of a primary headquarters from other headquarters.21 The Legislature thought it significant enough to make the distinction. The Tax Commission asserted the primary headquarters requirement indicates a "significant investment" in Oklahoma.22 The operations of a primary headquarters are what the deduction was intended to attract or retain in Oklahoma; otherwise, the Legislature would have simply used the term headquarters. It is not inconceivable that there will be situations where the functions of a primary headquarters could very well be performed more efficiently elsewhere. ¶20 I believe the deduction's primary headquarters requirement forecloses tax-neutral decision making and imposes an artificial rigidity on economic business patterns. It creates an advantage for companies operating their primary headquarters in Oklahoma as well as a disadvantage for those who operate their primary headquarters elsewhere, regardless of the extent of the company's investment in Oklahoma. This requirement is facially discriminatory or at least discriminatory in effect against interstate commerce and is unconstitutional under the dormant Commerce Clause. Strict scrutiny is the proper test to be applied and the Tax Commission has not met its burden of proof under this test. FOOTNOTES 1 Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 328, 97 S. Ct. 599, 606, 50 L. Ed. 2d 514 (1977). 2 Id. 3 Panhandle Producers & Royalty Owners Ass'n v. Oklahoma Tax Comm'n, 2007 OK CIV APP 68, n. 19, 162 P.3d 960, n. 19 (approved for publication by the Oklahoma Supreme Court) (noting Mt. Hood Beverage Co. v. Constellation Brands, Inc., 63 P.3d 779 (Wash. 2003)). 4 Koch Fuels, Inc. v. Oklahoma Tax Comm'n, 1993 OK 140, ¶33, 862 P.2d 471, 480. 5 Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 332 n. 12, 97 S. Ct. 599, 602 n. 12, 50 L. Ed. 2d 514 (1977). 6 See Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S. Ct. 848, 854, 133 L. Ed. 2d 796 (1996); Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality of State of Or., 511 US 93, 99, 114 S. Ct. 1345, 1350, 128 L. Ed. 2d 13 (1994). 7 Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). See also Panhandle Producers & Royalty Owners Ass'n v. Oklahoma Tax Comm'n, 2007 OK CIV APP 68, ¶23, 162 P.3d 960 (approved for publication by the OK Supreme Court); Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality of State of Or., 511 US 93, 99, 114 S. Ct. 1345, 1350, 128 L. Ed. 2d 13 (1994); Dorrance v. McCarthy, 957 F.2d 761 (10th Cir. 1992). 8 Pike, 397 U.S. at 142. See also Panhandle, at ¶23 and Dorrance, 957 F.2d at 763. 9 Panhandle, at ¶23. See also Dorrance, 957 F.2d at 763; Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S. Ct. 1727, 1736, 60 L. Ed. 2d 250 (1979). 10 Dorrance, 957 F.2d at 763. 11 Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality of State of Or., 511 U.S. 93, 100, 114 S. Ct. 1345, 1351, 128 L. Ed. 2d 13 (1994). 12 Hughes, 441 U.S. at 336. 13 United Haulers Ass'n, Inc., v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338, 127 S. Ct. 1786, 1793, 167 L. Ed. 2d 655 (2007); Oregon Waste Systems, Inc., 511 U.S. at 99. 14 Oregon Waste Systems, Inc., 511 U.S. at 99-100. 15 Oregon Waste Systems, Inc., 511 U.S. at 101. 16 Id. See also Hughes, 441 U.S. at 336 (quoting Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 353, 97 S. Ct. 2434, 2446, 53 L. Ed. 2d 383 (1997)) ("[w]hen discrimination against commerce . . . is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake." 17 Camps Newfoundland/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 582, 117 S. Ct. 1590, 1601, 137 L. Ed. 2d 852 (1997) (quoting Oregon Waste Systems, Inc.,511 U.S. at 101). See also Hughes, 441 U.S. at 337 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 626, 98 S. Ct. 2531, 2537, 57 L. Ed. 2d 475 (1978) ("[s]uch facial discrimination by itself may be a fatal defect, regardless of the State's purpose, because 'the evil of protectionism can reside in legislative means as well as legislative ends.'")). 18 See the provisions of 26 U.S.C. § 1361 et seq. In Bufferd v. Comm'r of Internal Revenue, 506 U.S. 523, 524-525, 113 S. Ct. 927, 928-929, 122 L. Ed. 2d 306 (1993), the United States Supreme Court explained that the purpose of the special tax status afforded by Subchapter S of the Internal Revenue Code, is "to eliminate tax disadvantages that might dissuade small businesses from adopting the corporate form and to lessen the tax burden on such businesses." The primary advantage of a Subchapter S corporation is the avoidance of taxation at both the corporate and individual shareholder level. Under Subchapter S, taxable income is determined at the corporate level, but is passed through to the S corporation's shareholders and taxed to them at their individual rates, in a manner similar to the tax treatment afforded partnerships. See Blitz U.S.A., Inc. v. Oklahoma Tax Comm'n, 2003 OK 50, ¶2, 75 P.3d 883, 884. 19 The Tax Commission made this assertion in Exhibit A to its Response to Petition in Error and in its Answer Brief on appeal. 20 Koch Fuels, Inc. v. State ex rel. Oklahoma Tax Comm'n, 1993 OK 140, ¶18, 862 P.2d 471, 476. 21 At oral argument on January 28, 2014, the Tax Commission acknowledged "primary headquarters" was not defined in statute but described "primary headquarters" as the "nerve center" of the corporation. CDR is a Subchapter S corporation with a single shareholder who lives in Florida. 22 CDR asserted it made a significant investment in Oklahoma by having a physical plant located in Waynoka, Oklahoma.    

0ea6f004-2480-4893-ae17-782e7992f8e3

Kentucky Fried Chicken of McAlester v. Snell

oklahoma

Oklahoma Supreme Court

KENTUCKY FRIED CHICKEN OF McALESTER v. SNELL2014 OK 35Case Number: 110829Decided: 04/29/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KENTUCKY FRIED CHICKEN OF McALESTER, and OLD GLORY INSURANCE CO., Insurance Carrier, Petitioners, v. BEN SNELL and THE WORKERS' COMPENSATION COURT, Respondents. PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT HON. CHERRI FARRAR ¶0 Workers' compensation claimant filed a claim for injuries allegedly arising on January 9, 2012, while working for his employer. The trial court awarded temporary total disability benefits and reserved all other issues. Employer appealed. The Court of Civil Appeals, Division IV, affirmed the trial court's order, holding the standard of review is "any competent evidence" because the legislatively mandated standard of "against the clear weight of the evidence" under 85 O.S. 2011 §340(D)(4) is unconstitutional under the separation of powers provision of the Oklahoma Constitution. This Court previously granted certiorari. We hold that there is no constitutional separation of powers prohibition in the Okla. Const, art. IV, §1 against the Legislature's adoption of the "against the clear weight of the evidence" standard of review in 85 OS. 2011 §340(D)(4). ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV; COURT OF CIVIL APPEALS' OPINION IS VACATED; MOTION FOR ATTORNEY FEES IS DENIED; CAUSE IS REMANDED TO COURT OF CIVIL APPEALS WITH DIRECTIONS. Cathy C. Barnum, Kelley Bodell, Donald R. Lindauer II, Norman, Oklahoma, for Petitioners, Ray Lahann, James E. Lowell, Tulsa, Oklahoma, for Respondents. OPINION WATT, J.: ¶1 The issue before this Court is whether the Court of Civil Appeals (COCA) erred when it held the Legislature's enactment of 85 O.S. 2011 §340(D)(4) of the Oklahoma Workers' Compensation Code (WCC), 85 O.S. 2011, §§301-413, (now repealed), violated the Oklahoma Constitution's separation of powers provision, Art. IV, §1. We hold in the affirmative. ¶2 Respondent/claimant, Ben Snell, was employed by Petitioner/Employer, Kentucky Fried Chicken of McAlester. He alleged that on January 9, 2012, while at work, he slipped and fell while carrying a tray of chicken weighing approximately 40 to 50 pounds. The trial court awarded claimant temporary total disability (TTD) and reasonable and necessary medical treatment for injuries to his neck, the second finger of his right hand, and aggravation of pre-existing conditions to his left knee and low back. All other issues were reserved. ¶3 On appeal, COCA sustained the award. In its opinion, COCA ruled the standard of review in this case is the "any competent evidence" standard because of a holding in a previous opinion by the same division, Westoak Industries, Inc. v. DeLeon, 2013 OK CIV APP 32, 299 P.3d 878.1 Westoak, supra, held 85 O.S. 2011 §340(D)(4), setting out "against the clear weight of the evidence" as the appellate standard of review in workers' compensation cases, constituted a violation of the separation of powers provision of the Oklahoma Constitution. Westoak is completely at odds with another COCA opinion, Harvey v. Auto Plus of Woodward, 2012 OK CIV APP 92, 287 P.3d 410, decided by Division 1. Harvey, supra, held §340(D)(4) was not unconstitutional as a separation of powers violation.2 We granted certiorari on January 7, 2014, in this case to consider the issue for the first time, as certiorari was not sought in either of the previous cases, and as noted above, COCA relied on Westoak Industries, Inc. v. DeLeon, supra, in determining that the "any competent evidence" standard is appropriate in this case.3 SEPARATION OF POWERS ¶4 The separation of powers provision in the Oklahoma Constitution is found at Art. IV, §1, and provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. ¶5 Westoak held the Legislature violated Art. IV, §1, by statutorily mandating the "against the clear weight of the evidence" standard for appellate courts. It held the Legislature was without authority to direct a specific standard of review for an order of the Workers' Compensation Court. ¶6 The Court of Civil Appeals relied extensively on Yocum v. Greenbriar Nursing Home, 2005 OK 27, 130 P.3d 213. At issue in that cause was an interpretation of 85 O.S. 2001 §17(D) (repealed 2011), which COCA read to require giving an IME's report prima facie effect, despite the absence of a specific requirement to do so. This Court would not infer such legislative intent from a statute silent on the subject. Yocum does not stand for the proposition that the Legislature may not alter the standard of proof in workers' compensation cases. Rather, it prohibits the Legislature from affording any one form of proof an elevated standard over similar evidence presented, thus robbing "that tribunal of its independent power to establish impairment or disability within the range of received competent evidence." Yocum at 130 P.3d 213, 220-221. [emphasis added]4 ¶7 Westoak, supra, cites several cases which are cited as persuasive authority for finding a separation of powers violation. See Puckett v. Cook, 1978 OK 108, 586 P.2d 7215 and Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557.6 ¶8 In Oklahoma State Chiropractic Independent Physicians Association v. Fallin, 2011 OK 102, 290 P.3d 1, this Court considered statutes7 which attempted to change the burden of proof8 used by the trial court when considering the medical reports of the IME's, as opposed to the medical reports of the other medical experts. The statutes would have changed the burden of proof at the trial court level of the Workers' Compensation Court from preponderance of the evidence to clear and convincing evidence only when considering the IME's reports. We held the provisions violated the separation of powers provision of our constitution because they restricted the court's authority to determine adjudicative facts.9 ¶9 Relying on Westoak, supra, to find the "any competent evidence" standard of review applied herein, COCA explained in the present case that, before the Legislature adopted §340(D)(4) in 2011, the settled standard of review by an appellate court for findings of fact was the traditional test set forth in Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548. Pursuant to this standard, findings of fact made by the Workers' Compensation Court are conclusive and binding upon an appellate court where there is any competent evidence reasonably tending to support such findings. Id. at ¶2, 684 P.2d at 549. Parks did not alter the distinctions between standards of review for fact determinations and conclusions of law. [citations and footnotes omitted] Westoak, supra, 299 P.3d at 880-881, ¶9. ¶10 The standard of review for questions of law, under former §26, has long been part of the statutory scheme for workers' compensation cases. Westoak found that Parks represented a continuation of the court-established "any competent evidence" standard of review. Nevertheless, it also acknowledged that the Workers' Compensation Act, in effect at the time Parks was decided, did not specify an appellate standard of review for factual determinations made by the fact-finder. Beginning in 2010, however, the Legislature did enact a specific appellate standard of review for factual determinations. See 85 O.S. Supp. 2010, §3.6(C) (repealed 2011), which was renumbered, effective August 26, 2011, as part of the newly enacted Workers' Compensation Code, as 85 O.S. 2011 §340(D)(4) (repealed 2-1-14),10 both of which provided, in pertinent part: [T]he Supreme Court may modify, reverse, remand for hearing, or set aside the order or award upon any of the following grounds: 1. The Court acted without or in excess of its powers; 2. The order or award was contrary to law; 3. The order or award was procured by fraud; or 4. The order or award was against the clear weight of the evidence. [emphasis added] ¶11 The above statute, however, did not usurp the authority of the trial court, as the fact-finding tribunal, in its determination of adjudicative facts. This Court does not determine adjudicative facts in the workers' compensation court. That is the prerogative and responsibility of the trial court and, when appropriate, the three-judge panel. The statute does not diminish the ability of the trial court or the three-judge panel to determine the adjudicative facts after considering the evidence and the appropriate law to be applied. Moreover, the statute does not infringe on the appellate authority of this Court, or of COCA, to use a particular standard of review after the adjudicative facts are determined.11 AUTHORITY OF THE LEGISLATURE ¶12 The Oklahoma Constitution provides at Article V, Section 36: The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever. ¶13 This Court does not examine the Constitution to decide whether the Legislature is permitted to act. Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, 184 P.3d 546, citing Tate v. Logan, 1961 OK 136, §19, 362 P.2d 670, 674-75. Instead, we examine the Constitution to determine whether the Legislature is prohibited from acting. Dixon, supra, 184 P.3d at 553. See Tate, supra, at 674-75: We do not look to the Constitution to determine whether the Legislature is authorized to do an act but rather to see whether it is prohibited. If there is any doubt as to the Legislature's power to act in any given situation, the doubt should be resolved in favor of the validity of the action taken by the Legislature. Restrictions and limitations upon legislative power are to be construed strictly, and are not to be extended to include matters not covered or implied by the language used. [emphasis added] ¶14 Our constitution prohibits the Legislature from passing certain laws, which are not at issue here.12 In the present case, it is argued that the enactment of 85 O.S. 2011 §340(D)(4), providing for the "against the clear weight of the evidence" standard of review for workers' compensation appeals, is unconstitutional because it violates the separation of powers provision of our constitution. The basis of this argument is that the Legislature is without authority to name a specific standard of review to impose on the courts. There is no indication in 85 O.S. 2011 §340(D)(4) that the application of the "against the clear weight" standard is to be applied other than uniformly to all appeals in which the injury occurred within the appropriate time frame.13 Therefore, it is not an unconstitutional special law under Art. V, §46, of the Oklahoma Constitution. ¶15 It has long been recognized by this Court that the workers' compensation system is a creature of statute. In the Matter of the Death of Christopher Allen Hyde, 2011 OK 31, 255 P.3d 411, Hefley v. Neely Insurance Agency, Inc., 1998 OK 12, 954 P.2d 135, and Cities Service Gas Co. v. Witt, 1972 OK 100, 500 P.2d 288. The workers' compensation court is a statutory tribunal of limited jurisdiction and has only such jurisdiction as is conferred by law. Hefley, supra, at 137, ¶7, citing Cities Service Gas Co. v. Witt, supra. It is within the prerogative of the legislature to make changes to the workers' compensation statutes. Id. ¶16 The subject matter of the statute concerns a "rightful subject" of legislation, i.e., the appellate standard of review by this Court under a compensation system created by statute. To hold that the Legislature cannot amend part of an act it created is not supported by the Oklahoma Constitution. Section 340(D)(4) applies uniformly to workers' compensation claimants whose claims arose during the appropriate time period. See Williams Companies, Inc., v. Dunkelgod, supra. Research reveals no prohibition against the statute at issue here, and the causes cited for its unconstitutionality are unconvincing. Moreover, the determination of adjudicative facts by the judiciary is not affected here. We have a duty to interpret statutes in a way that makes their application constitutional, rather than unconstitutional. Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, 866. We also held in Zeier, at 866-867: Nevertheless, just as it is the responsibility of the Legislature to make law and the Executive to carry those laws into effect, it is for the judiciary to interpret the same - we are the independent department of government charged with the responsibility of protecting the constitution. CONCLUSION ¶17 We hold that there is no constitutional separation of powers prohibition in the Okla.Const., art IV, §1 against the Legislature's adoption of the "against the clear weight of the evidence"standard of review in 85 O.S. 2011 §340(D)(4). COCA's opinion is vacated. Because we find Westoak Industries, Inc. v. DeLeon, 2013 OK CIV APP 32, 299 P.3d 878, and Harvey v. Auto Plus of Woodward, 2012 OK CIV APP 92, 287 P.3d 410, to be totally inconsistent with the views expressed in this opinion, they are both specifically overruled. ¶18 In light of our disposition of this constitutional issue regarding the separation of powers, the Claimant's Motion for Attorney Fees for Frivolous Appeal, pursuant to 20 O.S. 2011 §15.1, is denied. The opinion of the Court of Civil Appeals is vacated. This cause is remanded to COCA with directions to consider the issues in this appeal in conformity with the views expressed in this opinion. COURT OF CIVIL APPEALS' OPINION IS VACATED; MOTION FOR ATTORNEY FEES IS DENIED; CAUSE IS REMANDED TO COURT OF CIVIL APPEALS WITH DIRECTIONS. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COMBS, GURICH, JJ. - CONCUR TAYLOR, J. - NOT PARTICIPATING FOOTNOTES 1 COCA held, at page 7 of its unpublished opinion: Based on the date of Claimant's alleged injury, the workers' compensation statute applicable to this appeal is 85 O.S. 2011 §340, which, in §340(D)(4), purports to require this Court to review workers' compensation court determinations of non-jurisdictional facts based on a "clear weight of the evidence" standard of review. In Westoak Industries, Inc. v. DeLeon, 2013 OK CIV APP 32, 299 P.3d 878 (mandate issued 4/17/13), however, this Court held that 85 O.S. 2011 §340(D)(4) violates the "separation of powers" clause in Article IV of the Oklahoma Constitution. We ruled that the standard of review applicable to workers' compensation court factual decisions is the "any competent evidence" standard as set out in Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548. Thus, in this matter, to the extent we review factual determinations by the workers' compensation court, we apply the "any competent evidence" standard of review. As to review of decisions on issues of law, our review is de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. A claim of denial of due process is reviewed de novo. In re A.M. & R.W., 2000 OK 82, ¶6, 13 P.3d 484, 487. 2 However, Harvey held specifically that "[T]he Legislature clearly expressed its intent that 85 O.S. § 340(D) be applied retroactively and that the statute does not affect the substantive rights of the parties." COCA's holding is contrary to this Court's decision in Williams Companies, Inc. v. Dunkelgod, see infra, n.10. 3 Opinions from the Court of Civil Appeals have only persuasive effect unless the opinion bears the notation "Approved for publication by the Supreme Court" in which case it shall be accorded precedential value. Okla.Sup.Ct.R. 1.200(c)(2), 12 O.S. Supp. 2013, Ch. 15, App. 1. 4 Yocum explains that "adjudicative facts" are facts "to which the law is to be applied in the process of adjudication." Yocum, supra, at p. 221, ¶14, n.32. They are facts about the parties and must be ascertained from formal proof. The exclusive fact-finding control of the judiciary cannot be compromised by legislation. 130 P.3d at 221, ¶15. The statute in question in Yocum was, moreover, silent on attributing more weight to an IME's report, and this Court held an intrusion upon the judiciary's fact-finding control could not be inferred from a silent, ambiguous or doubtful statutory text. See Yocum, supra, at 221. 5 In Puckett, we considered 12 O.S. 1971 §559, which allowed consolidation of cases for trial only upon the agreement of the parties. We held the statute exercised ultimate control of certain classes of suits and was, therefore, an encroachment on the powers of unlimited original jurisdiction granted to district courts under Art. VII, §7, Okla. Const. Because §559, considered in Puckett, supra, allowed the parties to decide whether cases would be considered together, and ultimately, tried together, we held it removed the discretion which is accorded to the judiciary by the Oklahoma Constitution. 6 In Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557, we held 85 O.S. §17(A)(2)(b)violated the separation of powers provision of the Oklahoma Constitution, Art. IV, §1, because the restrictions placed on the workers' compensation court in §17 gave "determinative effect to the opinions of the court-appointed independent medical examiner and the treating physician even when the treating physician's opinion is not supported by objective medical evidence." Conaghan, at ¶22, 564-565. 7 85 O.S. 2011 §§326(G), 329(J) and 332(C). 8 Although we used the terminology "standard of review," it is clear that we were considering the burden of proof to be used at the trial level by the fact-finding tribunal. Fallin, supra, 290 P.3d at 6, ¶13; 290 P.3d at 7, ¶13. 9 In Fallin, we found the statutes which would have changed the burden of proof at the trial court level only for reports of IME's, as well as statutes excluding chiropractors from being IME's, were unconstitutional. We agreed that the statutes infringed upon the WCC's discretion in determining claims and invaded the judiciary's exclusive prerogative of fact-finding. Fallin, supra, 290 P.3d at 4-5, ¶10. 10 85 O.S. 2011 §340(D) originally provided that the date of the injury could be disregarded, making the "against the clear weight of the evidence" standard of review applicable to injuries which occurred before the effective date of the statute. However, in Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, 295 P.3d 1107, this Court invalidated that part of the statute, ruling it unconstitutionally abrogated a claimant's substantive right to have the appeal considered under the standard of review existing at the time of the injury, and giving it prospective application only. 11 Okla. Const. Art. 7, §4. Jurisdiction of Supreme Court - Writs The appellate jurisdiction of the Supreme Court shall be co-extensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final. ...The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law. 12 For example, see Art. V, §46, prohibiting the passage of "any local or special law" on certain enumerated actions. A "special law" is a law which singles out less than an entire class of similarly affected persons or things for different treatment. Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶27, 237 P.3d 181, 192. It relates to particular persons or particular things within a class. Id. On the other hand, a "general law" relates to all persons or things of a class and operates uniformly upon all persons or things brought within the class by common circumstances, even though it may directly affect only a few. Id., citing Reynolds v. Porter, 1988 OK 88, ¶14, 760 P.2d 816, 822. 13 We held in Dunkelgod, supra, that the appellate standard of review in workers' compensation cases is determined by the law in effect on the date of the injury. The "against the clear weight" standard was first in effect on November 1, 2010, cited as 85 O.S. Supp. 2010, §3.6(C). When the Workers' Compensation Code, effective 8/26/11, was enacted, the "against the clear weight" standard was found at 85 O.S. 2011 §340(D)(4). We invalidated the provision "regardless of the date of injury," in §340(D) because we held the standard of review on appeal was part of the substantive right of the accrued claim which arose on the date of the injury.  

158b95fc-3fae-4fb2-a586-9dd06411ae51

City of Jenks v. Stone

oklahoma

Oklahoma Supreme Court

CITY OF JENKS v. STONE2014 OK 11Case Number: 111223Decided: 02/25/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CITY OF JENKS, OKLAHOMA, an Oklahoma Municipality, Plaintiff/Appellee, v. TIMOTHY E. STONE, II, an individual, Defendant/Appellant. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Plaintiff, City of Jenks, Oklahoma, filed a petition for declaratory judgment in the District Court in Tulsa County, Oklahoma. In the petition, the plaintiff sought a declaration that the defendant, a probationary police trainee employed by plaintiff, was an at-will employee and that 11 O.S.2011, § 50-123, does not require the plaintiff to provide a cause for the defendant's dismissal or provide him with a board of review hearing. The district court found that plaintiff met the exception to § 50-123's requirement that it establish a board of review because it had entered into a collective bargaining agreement and that defendant was an at-will employee who was not entitled to a post-termination hearing under § 50-123, the collective bargaining agreement, or general principles of due process. The Court of Civil Appeals affirmed. This Court previously granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT AFFIRMED. Stephen L. Oakley, Jenks City Attorney, Jenks, Oklahoma, for plaintiff/appellee. James R. Moore, Jarrod A. Leaman, Douglas D. Vernier, James R. Moore & Associates, Oklahoma City, Oklahoma, for defendant/appellant. TAYLOR, J. I. ISSUES ¶1 The question before this Court is whether title 11, section 50-123(B) gives a probationary police trainee who is a member of the Oklahoma Police Pension and Retirement Systems (OPPRS), see 11 O.S.2011, §§ 50-101 to -136.8, a right to be terminated only for cause and a right to a post-termination hearing before a board of review. We answer the question in the negative. II. PROCEEDINGS BELOW ¶2 The City of Jenks (Jenks) filed a petition for declaratory judgment, attaching a collective bargaining agreement (agreement) between it and the Jenks Fraternal Order of Police, Lodge 146. Jenks alleged that it was entitled to a declaration that title 11, section 50-123 does not require it to provide the defendant, Timothy E. Stone II (Stone), with a post-termination hearing or to give him cause for terminating his employment. Stone filed a motion to dismiss for failure to state a claim. Jenks then filed a motion for summary judgment, asserting as facts that (a) Stone was on probation when he was discharged from his employment effective March 1, 2012, (b) Jenks and the Fraternal Order of Police, Lodge 146 had an agreement outlining the grievance and arbitration rights of full-time, permanent police officers, (c) Stone requested a review board hearing under title 11, section 50-123 of the 2011 Oklahoma Statutes, and (d) Stone is not entitled to a hearing. Stone did not refute the facts but maintained that he is entitled to a hearing before a board of review under section 50-123(B) and because he is a OPPRS member.1 ¶3 The district court denied Stone's motion to dismiss and granted summary judgment in Jenks' favor. The district court found that Stone was an at-will employee with no property rights in continued employment with Jenks. The district court also found that Jenks was exempt from offering Stone a board of review hearing by virtue of the agreement. Stone appealed. The Court of Civil Appeals found that Jenks was exempt from section 50-123 because it had entered into a collective bargaining agreement. This Court granted the writ of certiorari. III. FACTS ¶4 The facts are undisputed. Stone was employed by Jenks from August 29, 2011, until March 1, 2012, when Jenks terminated his employment. At the time of his discharge, Stone was a probationary police trainee; he was not covered by the collective bargaining agreement between Jenks and the Fraternal Order of Police, Lodge No. 146; the agreement's grievance and arbitration process was unavailable to him;2 and he was a member of the OPPRS. ¶5 After Stone was discharged, he requested a hearing before a municipal review board under title 11, section 50-123. Jenks denied the request, maintaining that section 50-123 did not require it to provide Stone with a hearing before a review board. IV. STANDARD OF REVIEW ¶6 Summary judgment settles only questions of law. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079, 1082. The standard of review of questions of law is de novo. Id. Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts. Runyon v. Reid, 1973 OK 25, ¶15, 510 P.2d 943, 946. V. ANALYSIS ¶7 An employee who can establish that he has a property right in his employment is protected by the Due Process Clause of the Fourteenth Amendment to the United State Constitution. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Property interests are not created by the Due Process Clause but "are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. Stone contends that title 11, section 50-123(B) provides him with a claim of entitlement, that is a property interest, in his continued employment. ¶8 Effective 1937, the Oklahoma Legislature enacted the Police Pensions Act, 1936 Okla. Sess. Laws 159-166 (ch. 33, §§ 1 - 24), authorizing a city or town employing two or more police officers to establish a pension and retirement system with contributions to be paid by the police officer and the city or town. Id. at 160 (§ 2). In 1977, the Oklahoma Legislature moved the management of the municipal systems to a state board. 1977 Okla. Sess. Laws 901-919 (ch. 256, §§ 50-101 to - 308). ¶9 In 1980, the Oklahoma Legislature created OPPRS. 1980 Okla. Sess. Laws 1093-1115 (ch. 356, §§ 1 - 41) (codified at 11 O.S.Supp. 1980, §§ 50-101 to -135). This enactment merged the local municipal police retirement systems into a unified state police retirement system. Id. Making only minor changes not relevant to our analysis, the Legislature retained title 11, section 50-123, which was originally enacted in the 1977 legislation. Section 50-123 remains unchanged since 1980. ¶10 Title 11, section 50-123 of the 1981 Supplement and the 2011 Oklahoma Statutes provides, in part: A. The governing body of every participating municipality, except municipalities which have provided for a civil service board of review or merit board, or have negotiated a contract covering discharge with their members to hear such appeals, shall establish a board of review to hear appeals concerning the discharge of members. . . . . . . B. No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided. . . . ¶11 The last significant amendments to the relevant provisions of the OPPRS Act occurred in 1995. See 1995 Okla. Sess. Laws 632-635 (ch. 173, §§ 1 - 8). Before the 1995 amendments, member was defined as "all eligible officers of a participating municipality." 11 O.S.1991, § 50-101(7). The 1995 amendments added language to the definition of member and to the eligibility requirements to specifically include "[a]ny person hired by a participating municipality who is undergoing police training to become a permanent police officer of the municipality." 1995 Okla. Sess. Laws at 632 (§ 1) (codified at 11 O.S.Supp.1978, §§ 50-101(7), 50-112(A)).3 A person undergoing police training is a probationary trainee such as Stone.4 ¶12 The plaintiff argues that section 50-123 is unambiguous, and the Court of Civil Appeals has split on its meaning.5 Because we find section 50-123 is ambiguous on the issues presented, we must determine legislative intent. Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859. ¶13 Two principles serve to inform our construction of title 11, section 50-123. The first is that Oklahoma follows the at-will employment doctrine. See Burk v. K-Mart Corp., 1989 OK 22, ¶ 6, 770 P.2d 24, 26. The at-will employment doctrine allows an employer to "discharge an employee for good cause, for no cause or even for cause morally wrong, without being guilty of legal wrong." Id.; Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 6, 878 P.2d 360, 363 ("Employers can discharge at-will employees without recourse, in good or bad faith, with or without cause.")6 ¶14 Second is the definition and the meaning of probation in the employment context. A probationary term is a trial period when an employee must prove that he is capable of performing the job duties before becoming a permanent employee. Black's Law Dictionary 1082 (5th ed. 1979). The Highway Safety Code, 47 O.S.2011, § 2-105(C)(1), defines the probationary period for Cadet Highway Patrolmen and Probationary Communications Dispatchers as a period when "the employee may be terminated at any time and for any reason at the discretion of the Commissioner." A probationary employee is an at-will employee: probationary trainees are not permanent officers and "lack the full panoply of employment rights enjoyed by those who have completed their initial training period." Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, ¶ 16, 44 P.3d 569, 573. ¶15 Keeping these premises in mind, we must determine whether, when it enacted title 11, section 50-123, the Oklahoma Legislature intended to create an exception to the at-will employment doctrine and to a municipality's authority to place a police trainee on probation or whether it intended only to allow the trainees to participate in the retirement system.7 In determining legislative intent, this Court utilizes rules of statutory construction. Lumber 2, Inc. v. Illinois Tool Works, Inc., 2011 OK 74, ¶ 8, 261 P.3d 1143, 1146. A statute will be given a reasonable and sensible construction: one that will reconcile its provisions and avoid inconsistences and absurdities. Zaloudek Grain Co. v. Compsource Oklahoma, 2012 OK 75, ¶ 7, 298 P.3d 520, 523. The legislative intent may be expressed in an enactment's title. Lumber 2, 2011 OK 74 at ¶ 8, 261 P.3d at 1146. Where there is authority to speak, legislative silence may indicate its intent. Zaloudek Grain Co., 2012 OK 75 at ¶ 7, 298 P.3d at 523. ¶16 In applying the rules of statutory construction, we may look to the title of the 1995 act that added trainees to the definition of members. The 1995 enactment was titled "Oklahoma Police Pension and Retirement System-Participation by Trainees." The title stated that it was an act "modifying provisions with respect to persons participating in retirement system," among other things, none of which supports Stone's position that the Legislature intended to give probationary trainees rights in their employment.8 The title shows the Legislature intended to allow probationary trainees to become members of the retirement and pension system, but there is no express or implied intent to give them rights in their employment. The negative implication then is that, when the Legislature allowed probationary trainees to participate in the retirement system, it did not intend to also create rights in their employment. ¶17 We next look at the inconsistencies and absurdities which Stone's construction would create. Title 11, section 50-123(A) requires each municipality participating in OPPRS to establish a board of review to hear appeals regarding the discharge of members. If a municipality has entered into a collective bargaining agreement covering the discharge of members, then it is exempt from establishing a board of review.9 The Fire and Police Arbitration Act (FPAA),11 O.S.2001, §§ 51-101 to -113, gives the right to collective bargaining to permanent members of paid fire and police departments only but not to probationary members, i.e., trainees. 11 O.S.2011, §§ 51-102(1), 51-103(A). To read members in section 50-123(A) as extending beyond permanent officers to include probationary trainees would strip the provision of any meaning. Instead, because the FPAA reserves the collective bargaining rights to permanent officers only, the term "members" as used in section 50-123(A) must be read to exclude probationary trainees. To read it otherwise would create an absurd result. It is uncontested that Jenks has entered into a collective bargaining agreement which meets section 50-123(A)'s exemption requirements and, therefore, is exempt from establishing a board of review. ¶18 We next turn to section 50-123(B), particularly the language relied on by the plaintiff: "No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided." Because Jenks is exempt from establishing a board of review, section 50-123(A) does not require Jenks to provide a board of review. It would be absurd to construe section 50-123(B) as allowing an appeal to a non-existent, non-required board of review. The only way to reconcile subsections 50-123(A) and 50-123(B) is to restrict the term member to permanent officers. This construction is consistent with the rule, "[w]hen the provisions of a statute assign one meaning to a term, its definition will apply in every other instance in which the same term is found anywhere else in the compilation." Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, ¶ 14, 44 P.3d 569, 573; see 25 O.S.2011, § 2. Since the term "members" as used in section 50-123(A) excludes probationary trainees, so must the term "members" exclude probationary trainees when it is used in section 50-123(B). ¶19 To find as plaintiff advocates would also be inconsistent with the statutes governing other law enforcement trainees. Title 47, section 2-105(C)(1), requires a Cadet Highway Patrolman or Probationary Communications Dispatcher to serve a twelve month probationary period with a possible three month extension. "During such probationary period, the employee may be terminated at any time and for any reason at the discretion of the Commissioner." 47 O.S.2011, 2-105(C)(1). Only after completion of the probationary period and becoming a permanent employee does the statute require the employee be given cause for termination or removal. Id. Agents of the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control must serve a one-year probationary period before being placed on permanent status. 63 O.S.2011, § 2-103(B)(3). Deputy sheriffs and detention officers for counties with a population of five hundred thousand must serve a five-year probationary period, and, only after serving the probationary period, are they given the right to be discharged for cause. 19 O.S.2011, § 547. It would be inconsistent with the legislative policy to give municipal probationary trainees the right to be discharged only for cause and to a post-termination while withholding the same rights from state and county law enforcement trainees. ¶20 Stone relies on City of Durant v. Cicio, 2002 OK 52, ¶ 23, 50 P.3d 218, 222, in which this Court determined that "section 50-123 protects a member's right to continue in his employment in the absence of showing of cause, and the board of review has the authority to pass on the merits of the discharge decisions." The City of Durant had not entered into a collective bargaining agreement, and it appears that the policeman in Cicio was a permanent officer. Therefore, Cicio is distinguishable. VI. CONCLUSION ¶21 All reasoning leads to the conclusion that the Legislature did not intend to give probationary police trainees the right to be fired only for cause and a post-termination hearing before a board of review. When the Legislature enacted the 1995 amendment redefining "member" in section 50-101(6), it must have overlooked the impact the new definition would have on section 50-123(B). This resulted in an ambiguity as to whether a probationary police trainee could be fired without cause and without a right to post-termination hearing. We resolve that ambiguity by finding that the term "member" as it is defined in section 50-123 does not include a probationary police trainee. ¶22 Section 50-123 does not give Stone, a probationary trainee at the time of his discharge, any rights in his employment and does not entitle him to a board of review hearing. The Court of Civil Appeals' opinion is vacated; the district court's judgment is affirmed. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 In his petition for certiorari, Stone does not argue that he was entitled to a pre-termination hearing under the Due Process Clause of the 14th Amendment to the United States Constitution. Rather, he seeks a post-termination board of review hearing under title 11, section 50-123. 2 At Article I, the agreement provides: "The employer recognizes the Lodge as the sole and exclusive Bargaining Agent for all commissioned permanent paid members of the Police Department, excluding the Chief of Police, an Administrative Assistant, probationary employees, civilian or non-sworn employees, clerical/administrative employees, part-time employees, and Reserve Police Officers." The grievance and arbitration process set out in the agreement starts with a discussion between the police chief and the employee and ends with arbitration. 3 Title 11, section 50-112(A) of the 2011 Oklahoma Statutes provides: All persons employed as full-time duly appointed or elected officers who are paid for working more than twenty-five (25) hours per week or any person hired by a participating municipality who is undergoing police training to become a permanent police officer of the municipality shall participate in the System upon initial employment with a police department of a participating municipality. . . . 4 In Fraternal Order of Police, Lodge 108 v. City of Ardmore, 2002 OK 19, 44 P.3d 569, the issue was whether two probationary police trainees who were terminated were permanent members of the municipality's police department for purposes of invoking the grievance and arbitration rights under the terms of the Fire and Police Arbitration Act (FPAA), 11 O.S.2001, §§ 51-101 to -113. Because the FPAA did not define members, this Court turned to the OPPRS Act for guidance. In City of Ardmore, this Court recognized that with the 1995 amendments, section 50-123 recognized two distinct classes: permanent officers and probationary trainees. Id. ¶ 13. We determined that one who is "undergoing police training to become a permanent police officer of [a] municipality" is a probationary trainee. Id. 5 The Court of Civil Appeals divisions have reached different results on the meaning of title 11, section 50-123. The Court of Civil Appeals ruled in the present case (Division III) and in City of Coweta v. Doughten, 2011 OK CIV APP 113, 264 P.3d 135 (Division IV), that section 50-123(B) does not create a right to be terminated for cause only or a right to a post-termination hearing for probationary employees. In White v. City of Del City, 2012 OK CIV APP 5, 270 P.3d 205 (Division II) and O'Dell v. City of Tulsa, OK, 104,639, slip op. (Okla. Civ. App. Aug. 24, 2007) (Division I), the Court of Civil Appeals ruled that a probationary trainee had a right to a post-termination hearing under section 50-123(B). 6 We have recognized a limited public policy exception to the at-will employment doctrine, known as a Burk tort. Burk, 1989 OK 22 at ¶ 21, 770 P.2d at 29. 7 Before the 1995 enactment, only a "duly appointed and sworn full-time officer" could participate in the system. See 11 O.S.1981, §§ 50-101, 50-112. 8 The title to the 1995 act, provides in its entirety: An Act relating to the Oklahoma Police Pension and Retirement System; amending 11 O.S.1991, Sections 50-101, as last amended by Section 3, Chapter 84, O.S.L. 1994, 50-104.2, 50-111.1, as last amended by Section 5, Chapter 2, O.S.L. 1994, 50-112, as amended by Section 4, Chapter 390, O.S.L. 1992, 50-115 and 50-127 (11 O.S.Supp. 1994, Sections 50-101, 50-111.1 and 50-112), which relate to administration of the Oklahoma Police Pension and Retirement System; modifying definitions; adding definition; modifying provision related to office facilities; modifying terminology with respect to withdrawal of accumulated contributions; modifying provisions with respect to persons participating in retirement system; modifying provisions related to physical-medical examinations; providing for offset of benefits based upon preexisting conditions; modifying provisions related to withdrawal from retirement system; providing an effective date; and declaring an emergency. 1995 Okla. Sess. Laws 632-635 (ch. 173). 9 A municipality is also exempt from establishing a board of review if it has "provided for a civil service board of review or merit board," 11 O.S.2011, § 50-123(A). A municipality whose charter provides for a "civil service or merit system pertaining to the appointment and discharge of members and an independent board or commission having authority to hear actions involving the discharge of members" is exempt from section 50-123's provisions relating to the board of review and discharge. Id. at 50-123(B).  

45edeebf-2a58-4aac-b2f6-d597cc554ae5

Hall v. GEO Group, Inc.

oklahoma

Oklahoma Supreme Court

HALL v. THE GEO GROUP, INC2014 OK 22Case Number: 112222Decided: 04/01/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. WALTER HALL, Plaintiff/Appellant, v. THE GEO GROUP, INC, Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Bill Graves, Trial Judge ¶0 Walter Hall was allegedly injured while being transported to a medical appointment by a private prison facility, GEO. Two years and two months later, he filed a lawsuit against it for negligence. GEO filed a motion for summary judgment, arguing that the statute of limitations had expired and the lawsuit was untimely. Hall insisted that the limitation period was tolled due to his injury. The trial court granted GEO's motion for summary judgment and Hall appealed. We hold that pursuant to 57 O.S. 2011 §566.4, compliance with the notice provisions of the Governmental Tort Claims Act (GTCA) is required to bring a tort action against a private correctional facility. The notice required by the GTCA is a mandatory prerequisite to filing a claim for tort damages and it is a jurisdictional requirement. Because Hall did not comply with the GTCA and the notice of claim requirement of the GTCA is only tolled 90 days due to incapacity from an injury, the cause must be dismissed as untimely filed. TRIAL COURT AFFIRMED. CAUSE DISMISSED. Rex Travis, Paul Kouri, Oklahoma City, Oklahoma, for Appellant. Don G. Pope, Norman, Oklahoma, for Appellee. KAUGER, J: ¶1 The dispositive issue presented is whether the plaintiff's negligence action should be dismissed as untimely brought. We hold that, pursuant to 57 O.S. 2011 §566.4, compliance with the notice provisions of the Governmental Tort Claims Act (GTCA) is required for a prisoner, or former prisoner, to bring a tort action against a private correctional facility.1 The notice required by the GTCA is a mandatory prerequisite jurisdictional requirement2 to filing a claim for tort damages. 3 Because Hall did not comply with the notice requirements and the notice of claim requirement of the GTCA is only tolled for 90 days due to incapacity from an injury, the cause must be dismissed as untimely filed.4 FACTS ¶2 The Oklahoma Department of Corrections (DOC) admitted the plaintiff/appellant, Walter Hall (Hall) as an inmate in April of 2010, after his convictions for failing to comply with the sex offender registry and falsely impersonating another person. While in DOC custody, Hall suffered a head injury from a fall at a hospital while he was being examined for alleged chest pains. As a result of the fall, Hall suffered a subdural hematoma which required surgery. He received a metal plate surgically implanted over his brain. After the surgery, he contracted a staphylococcus infection, the metal plate was removed, and he was confined to a wheelchair. ¶3 On April 28, 2010, DOC transferred Hall to a private correctional facility owned and operated by the defendant/appellee, GEO in Lawton, Oklahoma. On September 7, 2010, GEO transported Hall in a van to Oklahoma City for medical treatment. His feet and hands were shackled, but his wheelchair was not restrained or secured to the van. When the driver moved the van abruptly, the wheelchair toppled over. Hall allegedly injured his shoulder and chest, and he contends that he lost consciousness and re-injured the hematoma. ¶4 GEO diverted the van to the local emergency room at Southwestern Medical Center Hospital in Lawton, Oklahoma, where Hall was examined, treated for a headache, and returned to the prison. The emergency room exam found no signs of visible injury or distress.5 After he returned to the prison, Hall complained of being unable to sleep and having very bad headaches. At some point later, Hall alleges that he had surgery on his shoulder and that the injury to his chest was not timely addressed and now his chest is deformed. Hall was transferred to the minimum security facility, John H. Lilley Correctional Center in Boley, Oklahoma, on February 17, 2011, and released from confinement in September of 2011. ¶5 On June 18, 2012, Hall filed a lawsuit in the district court of Oklahoma County, alleging that the employees of GEO were negligent when they did not strap his wheelchair in the van to prevent it from toppling over and injuring him. GEO filed a motion to dismiss on July 10, 2012, arguing that: 1) pursuant to 12 O.S. 2011 §95(11),6 an inmate is required to bring a claim for injury within one year from the date the injury occurred; and 2) because the incident occurred on September 7, 2010, Hall's opportunity to bring his lawsuit expired on September 7, 2011, nearly a year before he actually filed the lawsuit. ¶6 Hall responds that: 1) he was under a legal disability until sometime after he was released from confinement in 2011, which prevented the running of the statute of limitations pursuant to 12 O.S. 2011 §96;7 and 2) even if he were not under such a disability, the one-year statute of limitations for inmates is an unconstitutional special law8 and which violates the equal protection clauses of both the state and federal Constitutions.9 ¶7 Neither party noted the application of 57 O.S. 2011 §566.4. It requires compliance with the notice provisions of the Governmental Tort Claims Act (GTCA) when a prisoner or former prisoner brings a tort action against a private correctional facility.10 On December 3, 2012, the trial court overruled GEO's motion to dismiss.11 On May 3, 2103, GEO filed a motion for summary judgment, arguing that the action was untimely and that administrative remedies were not properly exhausted. ¶8 Hall responded that: 1) the administrative remedies provided to inmates were nothing more than an "offender grievance process" intended to provide answers to inmate questions, not to provide compensation for medical bills and pain and suffering; and 2) he was under a legal disability which tolled the statute of limitations. Hall also, again, argued that, in the event the statute of limitation period was not tolled, the one year limitation period applicable only to inmates was an unconstitutional special law and it violates equal protection. ¶9 On September 6, 2013, the trial court granted GEO's motion for summary judgment and entered judgment in favor of GEO. Hall appealed to this Court on October 3, 2013. We retained the cause on November 13, 2013. On January 23, 2014, we ordered both parties to brief simultaneously the applicability of 57 O.S. 2011 §566.4B(2) 12 and the briefing was completed on February 7, 2014. ¶10 PURSUANT TO THE GTCA, 57 O.S. 2011 §566.4, THE NOTICE PROVISIONS OF THE GTCA APPLY TO TORT ACTIONS BROUGHT BY PRISONERS AND FORMER PRISONERS AGAINST PRIVATE CORRECTIONAL FACILITIES. NOTICE IS A MANDATORY PREREQUISITE TO FILING A CLAIM FOR TORT DAMAGES AND THERE HAS BEEN NO COMPLIANCE WITH THE GTCA. BECAUSE NOTICE OF A CLAIM IS ONLY TOLLED 90 DAYS DUE TO INCAPACITY FROM INJURY, THE CAUSE MUST BE DISMISSED AS UNTIMELY FILED. ¶11 Neither party noted the existence or applicability of 57 O.S. 2011 §566.4 which applies the notice provisions of the GTCA to lawsuits brought by prisoners or former prisoners against private correctional facilities.13 GEO contends that it is dispositive of this cause, but Hall argues that because GEO did not raise the statute's applicability and the trial court did not apply it, the statute should not be applicable to this appeal. ¶12 Not only do we take judicial notice of the statute,14 but jurisdictional inquires may be made by the courts at any stage of the proceedings.15 This Court is duty bound to inquire into its own jurisdiction and the jurisdiction of the court below from which the case came by appeal.16 This duty exists even if it is not raised by the parties.17 ¶13 Compliance with the statutory notice provisions of the GTCA is a jurisdictional requirement to be completed prior to the filing of any pleadings.18 The record before us does not show that Hall has complied with the notice provisions of the GTCA, nor does he allege that he has complied. In addition to the applicability of §566.4, 57 O.S. 2011 §566.5 provides that complete exhaustion of statutory remedies against private correctional facilities is jurisdictional.19 Based on the record provided, and the plain and unambiguous requirements of 57 O.S. 2011 §566.420 and §566.5,21 the district court had no jurisdiction over the tort claims asserted in Hall's lawsuit and properly granted the defendant's motion for summary judgment. ¶14 Because we determine that the GTCA is controlling and the one year limitation period of 12 O.S. 2011 §96 is inapplicable to this cause, we need not address Hall's constitutional challenges to §96.22 However, Hall also argues that the notice and limitation provisions of the GTCA also violate equal protection and are an unconstitutional special law.23 This argument is unconvincing because by extending the notice provisions of the GTCA to private prisons, the Legislature has ensured equal treatment between plaintiffs who are or were confined in state owned prisons with those who are or were confined in private prisons as well as any other plaintiff who has a tort claim against a governmental entity. Furthermore, we have already upheld the GTCA under equal protection and special law challenges to the dichotomy it creates between plaintiffs.24 ¶15 As for Hall's claims of tolling because he was under a legal disability25 we have previously held that where the GTCA includes specific provisions, the general statute of limitations does not apply.26 In Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, ¶16, 910 P.2d 998, the Court held that only where valid notice had been given and the claim had been timely filed, invoking the court's power, could the broad terms of the general savings statute 12 O.S. 1991 §100 apply.27 The notice provisions of the GTCA limit tolling due to incapacity from injury to 90 days.28 ¶16 The GTCA gave Hall, at most, one year to file his lawsuit. [90 days for the prison to deny a claim, 180 days to bring an action after a claim is denied, and 90 days tolled for incapacity due to injury]. Even if the general tolling provisions of 12 O.S. 2011 §9629 applied to the GTCA, this action cannot be maintained under these facts because timely compliance with the GTCA was crucial to invoking the jurisdiction of the district court. ¶17 We need not address the arguments regarding whether exhaustion of GEO's grievance procedures30 is applicable to Hall's claim,31 because the action was untimely. It was commenced two years and two months after the injury occurred. When possible, an appellate court must hand down that judgment, which in its opinion, the trial court should have rendered.32 If the trial court reaches the correct result but for the wrong reason, its judgment is not subject to reversal.33 Rather, the Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale.34 Accordingly, we affirm the trial court's grant of summary judgment, but do so on the basis that the cause must be dismissed as untimely filed. CONCLUSION ¶18 Neither party noted the existence of 57 O.S. 2011 §566.4,35 nor did the trial court rely on the statute to decide the cause. If the trial court reaches the correct result but for the wrong reason, its judgment is not subject to reversal.36 Rather, the Court is not bound by the trial court's reasoning and may affirm the judgment below on a different legal rationale.37 ¶15 Pursuant to 57 O.S. 2011 §566.4, compliance with the notice provisions of the Governmental Tort Claims Act (GTCA) is required to bring a tort action against a private correctional facility. The notice required by the GTCA is a mandatory prerequisite to filing a claim for tort damages and it is a jurisdictional requirement. Nothing in the record indicates compliance with the GTCA, nor has the plaintiff alleged that he has complied with the GTCA. Because the notice of claim requirement of the GTCA is only tolled 90 days due to incapacity from an injury, the cause must be dismissed as untimely filed. TRIAL COURT AFFIRMED. CAUSE DISMISSED. ALL JUSTICES CONCUR. FOOTNOTES 1 Title 57 O.S. 2011 §566.4 provides in pertinent part: A. No action may be brought in a court of this state by a prisoner or former prisoner for mental or emotional injury allegedly suffered while under arrest, being detained, or in custody or incarcerated without a prior showing of actual physical injury. . . . B. . . .2. No tort action or civil claim may be filed against any employee, agent, or servant of the state, the Department of Corrections, private correctional company, or any county jail or any city jail alleging acts related to the duties of the employee, agent or servant, until all of the notice provisions of the Governmental Tort Claims Act [FN1] have been fully complied with by the claimant. This requirement shall apply to any claim against an employee of the state, the Department of Corrections, or any county jail or city jail in either their official or individual capacity, and to any claim against a private correctional contractor and its employees for actions taken pursuant to or in connection with a governmental contract. (Emphasis supplied). [FN1] Title 51, §§151 et seq. Unless statutes have changed since the date of Hall's accident, references in this opinion are to the current versions. Hall's argument that this statute only applies to tort actions that arise out of the governmental contracts is contrary to the plain language of the statute when read as a whole. See, Welch v. Crow, 2009 OK 20, ¶10, 206 P.3d 599. 2 Harmon v. Cradduck, 2012 OK 80, ¶28, 286 P.3d 643 [ Notice is a jurisdictional prerequisite to bringing an action under the GTCA. Failure to present written notice as required by the GTCA results in a permanent bar of any action derivative of the tort claim.]. Title 57 O.S. 2011 §566.5 provides that complete exhaustion of statutory remedies against private correctional facilities is jurisdictional. It provides: In any legal proceeding filed by an inmate, full and complete exhaustion of all administrative and statutory remedies on all potential claims against the state, the Department of Corrections, private entities contracting to provide correctional services, or an employee of the state or the Department of Corrections is a jurisdictional requirement and must be completed prior to the filing of any pleadings. 3 Title 57 O.S. 2011 §566.4, see note 1, supra. Compliance with the notice provisions of the GTCA is a condition precedent to suit. Duncan v. City of Nichols Hills, 1996 OK 16, ¶14, 913 P.2d 1303; Gurley v. Memorial Hosp. of Guymon, 1989 OK 34, ¶6, 770 P.2d 573. 4 The notice provisions of the Governmental Tort Claims Act are provided by 51 O.S. 2011 §§156 and 157. Section 156 sets forth written notice requirements and provides a one year limitation period which can be tolled due to incapacity. It provides in pertinent part: A. Any person having a claim against the state or a political subdivision within the scope of Section 151 et seq. of this title shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages. B. Except as provided in subsection H of this section, and not withstanding any other provision of law, claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs. C. A claim against the state shall be in writing and filed with the Office of the Risk Management Administrator of the Office of Management and Enterprise Services who shall immediately notify the Attorney General and the agency concerned and conduct a diligent investigation of the validity of the claim within the time specified for approval or denial of claims by Section 157 of this title. A claim may be filed by certified mail with return receipt requested. A claim which is mailed shall be considered filed upon receipt by the Office of the Risk Management Administrator. D. A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body. E. The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, the name, address and telephone number of any agent authorized to settle the claim, and any and all other information required to meet the reporting requirements of the Medicare Secondary Payer Mandatory Reporting Provisions in Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) through the Centers for Medicare & Medicaid Services (CMS). Failure to state either the date, time, place and circumstances and amount of compensation demanded, or any information requested to comply with the reporting claims to CMS under MMSEA shall not invalidate the notice unless the claimant declines or refuses to furnish such information after demand by the state or political subdivision. The time for giving written notice of claim pursuant to the provisions of this section does not include the time during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity. . . . (Emphasis supplied) Section 157 provides: A. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the state or political subdivision. B. No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. The claimant and the state or political subdivision may agree in writing to extend the time to commence an action for the purpose of continuing to attempt settlement of the claim except no such extension shall be for longer than two (2) years from the date of the loss. 5 The Attending Physician Note dated 9/7/2010 is attached to the Defendant's Motion for Summary Judgment and it provides in pertinent part: Physical Examination: General Appearance: Development: well developed and appears stated age. Level of Distress: in no distress. Level of consciousness: alert and awake. HEENT: Scalp: atraumatic Head: No signs of trauma. Nose: No epistaxis. Pharynx: normal. Neck: Trachea: midline. Jugular Veins: flat at 45 degrees on stretcher. Bony structures: No tenderness to palpation. Respiratory: Chest inspection: No use of accessory muscles or intercostal retractions. Breath sounds: normal in all lung fields. Adventitious sounds: none. Cardiovascular: Heart rate: normal, Heart rhythm: regular. Cardiac murmurs: none. Cartoid arteries: full and equal bilaterally. Abdominal aorta: No pulsatile mass or bruit. Popiteal arties: both equal to palpation. Dorsallis pedis arteries: present and equally bilaterally. Gastrointestinal: Palpation of Abdomen: NO tenderness or guarding. Musculoskeletal: Sternochondral junctions: nontender. Neurologic: Provocative testing: gait not tested. CN3: pupillary light response normal bilaterally. CN5: facial sensations normal bilaterally. CN8: Normal hearing for age. CN 9-10: soft palate movements elevates normally. CN 12: toungue protrusion in midline. Motor examination: moves arms and legs spontaneously. Sensory examination: light touch intact arms and legs. Psychiatric: Orientation: oriented to person to place to time situation. (Emphasis in original). 6 Title 12 O.S. 2011 §95 provides in pertinent part: . . .11. All actions filed by an inmate or by a person based upon facts that occurred while the person was an inmate in the custody of one of the following: a. the State of Oklahoma, b. a contractor of the State of Oklahoma, or c. a political subdivision of the State of Oklahoma, to include, but not be limited to, the revocation of earned credits and claims for injury to the rights of another, shall be commenced within one (1) year after the cause of action shall have accrued; . . . 7 Title 12 O.S. 2011 §96 provides: If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one (1) year after such disability shall be removed, except that, after the effective date of this section, an action for personal injury to a minor under the age of twelve (12) arising from medical malpractice must be brought by the minor's parent or guardian within seven (7) years of infliction of the injury, provided a minor twelve (12) years of age and older must bring such action within one (1) year after attaining majority, but in no event less than two (2) years from the date of infliction of the injury, and an action for personal injury arising from medical malpractice to a person adjudged incompetent must be brought by the incompetent person's guardian within seven (7) years of infliction of the injury, provided an incompetent who has been adjudged competent must bring such action within one (1) year after the adjudication of such competency, but in no event less than two (2) years from the date of infliction of the injury. 8 The Okla. Const. art. 5, §59 provides: § 59. Uniform operation of general laws - Special laws when general law applicable. Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted. The Okla. Const. art. 5, §46 provides: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law . . . 9 The Okla. Const. art. 2, §2 provides: All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry. The Fourteenth Amendment of the United States Constitution provides in pertinent part: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . 10 Title 57 O.S. 2011 §566.4 see note 1, supra 11 Hall had also alleged that his claim survives under a §1983 action and its 2 year limitation period. In the order overruling GEO's motion to dismiss, the trial court also granted Hill 10 days to amend his petition to plead a §1983 action. However, the record presented on appeal does not reflect that this was ever done. Accordingly, any questions regarding a §1983 action are not before the Court in this cause. 12 Title 57 O.S. 2011 §566.4 see note 1, supra. 13 Title 57 O.S. 2011 §566.4 see note 1, supra. 14 Title 12 O.S. 2011 §2201 provides in pertinent part; A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States.... 15 Jurisdictional inquiries into judicial cognizance may be considered and examined at any stage of the proceedings, either on motion or sua sponte. In re Oklahoma Boll Weevil Eradication Organization, 1999 OK 1, ¶7, fn. 22, 976 P.2d 1035; Lincoln Bank and Trust Co. v. Okla. Tax Com'n, 1992 OK 22, ¶6, fn. 14, 827 P.2d 1314, 1318; Fields v. A & B Electronics, 1990 OK 7, ¶4, 788 P.2d 940, 941; Baylis v. City of Tulsa, 1989 OK 90, ¶6, 780 P.2d 686, 688; Luster v. Bank of Chelsea, 1986 OK 74, ¶13,730 P.2d 506, 508. 16 Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶25, 139 P.3d 873; Stites v. DUIT Const. Co., Inc., 1995 OK 69, ¶ 8, n. 10, 903 P.2d 293, 297; Lincoln Bank and Trust Co. v. Okla. Tax Comm'n, see note 15, supra; Cate v. Archon Oil Co., Inc., 1985 OK 15, ¶ 10, n. 12, 695 P.2d 1352, 1356, n. 12; Pointer v. Hill, 1975 OK 73, ¶ 14, 536 P.2d 358, 361. 17 Broadway Clinic v. Liberty Mut. Ins. Co., see note 16, supra; United Airlines v. State Bd. of Equalization, 1990 OK 29, ¶7, 789 P.2d 1305. Hall relies on Hathaway v. State ex rel. Medical Research & Technical Authority, 2002 OK 53, 49 P.3d 740 and similar federal caselaw for the proposition that GEO did not invoke the provisions of the GTCA and raise it as an affirmative defense, application of the GTCA is waived. This reliance is misplaced. Hathaway addressed the repercussions of filing a notice of claim prematurely. Nor is this a case of substantial compliance because the notice of claim was not filed at all and the lawsuit was brought over 2 years after the incident occurred. 18 Title 57 O.S. 2011 §566.5, see note 2, supra. 19 Title 57 O.S. 2011 §566.5, see note 2, supra. 20 Title 57 O.S. 2011 §566.4, see note 1, supra. 21 Title 57 O.S. 2011 §566.5, see note 2, supra. 22 12 O.S. 2011 §96, see note 7, supra. 23 The Okla. Const. art. 5, §59, see note 8, supra; The Okla. Const. art. 5, §46, see note 8, supra; The Okla. Const. art. 2, §2 , see note 9, supra; The Fourteenth Amendment of the United States Constitution, see note 9, supra. 24 Anderson v. Eichner, 1994 OK 136, ¶20, 890 P.2d 1329; Wilson v. Gipson, 1998 OK 35, ¶14, 753 P.2d 1349; Childs v. State ex rel. Okla. State Univ., 1993 OK 18, ¶20, 848 P.2d 571, cert. denied 114 S. Ct. 92, 510 U.S. 827, 126 L. Ed. 2d 60. It has also withstood challenges to the notice provisions as being a special law. Jarvis v. City of Stillwater, 1987 OK 5, ¶6, 732 P.2d 470; Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶13, 730 P.2d 510; Reirdon v. Wilburton Bd. of Ed., 1980 OK 67, ¶4, 611 P.2d 239. 25 Title 12 O.S. 2011 §96, see note 7, supra. 26 Rout v. Crescent Public Works Authority, 1994 OK 85, ¶8, 878 P.2d 1045 [The limitations within the GTCA control over general statutory law.]; Shanbour v. Hollingsworth, 1996 OK 67, ¶1, 918 P.2d 73 [General provisions of 12 O.S. 1991 §2006(B)(2) relating to excusable neglect are not applicable to GTCA]: Johns By and Through Johns v. Wynnewood School Bd. of Education, 1982 OK 101, ¶7, 656 P.2d 248 [Provisions of 12 O.S. 1981 §96 do not apply to extend the time to give notice of a claim on behalf of a minor.]. See also, although not precedential, Tyler By and Through Tyler v. Board of County Com'rs of Kay County, 1996 OK CIV APP 31, ¶9, 915 P.2d 951 said: In this action, Tyler did not timely file her action in district court. Thus, the district court's power was not invoked and the action was still under the manta of the Act, not controlled by the general laws of this state, including 12 O.S. 1991 § 96 . The trial court did not err in declining to apply that section to Tyler's action. See also, Duncan v. City of Nichols Hills, 1996 OK 16, ¶30, 913 P.2d 1303 [GTCA did not apply where specific provisions of employment discrimination claims were brought under anti-discrimination act 25 O.S. 1991 §1101]; United Brick & Tile Co. v. Roy, 1960 OK 174, ¶10, 356 P.2d 107 [General statute of limitations is not applicable to claims under the Workmen's Compensation Act. 27 Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, ¶18, 910 P.2d 998, [Section 100 permits the refiling of a governmental tort claims action only where the court's power has been invoked by the original action.] 28 Title 51 O.S. 2011 §156, see note 4, supra. 29 Title 12 O.S. 2011 §96, see note 7, supra. 30 We express no opinion on the exhaustion of administrative remedies as applied to GEO's grievance procedure. However, we note that, although not precedential, the Court of Civil Appeals has recognized exhaustion is required for non-tort claims. Burghart v. Corrections Corporation of America, 2009 OK CIV APP 76, ¶14, 224 P.3d 1278; Simmons v. Corrections Corporation of America, 2006 OK CIV APP 13, ¶13, 130 P.3d 305. Title 57 O.S. 2011 §566.5 provides in pertinent part: In any legal proceeding filed by an inmate, full and complete exhaustion of all administrative and statutory remedies on all potential claims against the state, the Department of Corrections, private entities contracting to provide correctional services, or an employee of the state or the Department of Corrections is a jurisdictional requirement and must be completed prior to the filing of any pleadings. 31 Title 57 O.S. 2011 §564 provides in pertinent part: An inmate in the custody of the Department of Corrections shall completely exhaust all available administrative remedies on all potential claims against the state, any governmental entity, the Department of Corrections, a private company providing services to the Department of Corrections, or an employee of the state, any governmental entity, the Department of Corrections, or a private company providing services to the Department of Corrections prior to initiating an action in district court. Upon release from custody an inmate shall be barred from bringing any action for a claim arising during custody or incarceration in which the inmate has failed to exhaust all administrative remedies. 32 Dixon v. Bhuiyan, 2000 OK 56, ¶9, 10 P.3d 888. 33 Dixon v. Bhuiyan, see note 32, supra; In the Matter of the Estate of Bartlett, 1984 OK 9, ¶4, 680 P.2d 369. 34 Dixon v. Bhuiyan, see note 32, supra; McMinn v. City of Oklahoma City, 1997 OK 154, ¶11, 952 P.2d 517. 35 Title 57 O.S. 2011 §566.4, see note 1, supra. 36 Dixon v. Bhuiyan, see note 32, supra; In the Matter of the Estate of Bartlett, see note 33, supra. 37 Dixon v. Bhuiyan, see note 32, supra; McMinn v. City of Oklahoma City, see note 34, supra.  

a111f090-c2d2-46dc-a09b-feed251500ea

Graham Public Schools v. Priddy

oklahoma

Oklahoma Supreme Court

GRAHAM PUBLIC SCHOOLS v. PRIDDY2014 OK 30Case Number: 111038Decided: 04/22/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GRAHAM PUBLIC SCHOOLS and COMPSOURCE OKLAHOMA, Petitioners, v. DENA PRIDDY and THE WORKERS' COMPENSATION COURT, Respondents. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ON APPEAL FROM THE WORKERS' COMPENSATION COURT STATE OF OKLAHOMA HONORABLE OWEN EVANS, JUDGE ¶0 On February 25, 2011, Claimant was injured at work as she walked out a door used by employees to exit Employer's school building. A rug outside the door slipped out from under her, causing her to fall. At the time of this accident, claimant was leaving work early due to a family medical emergency. The Workers' Compensation Court found this injury to be compensable, but the Court of Civil Appeals ruled it was not. The Court of Civil Appeals held that claimant was on a personal mission at the time of the injury and vacated the award of benefits. Claimant filed a petition for certiorari, asking this Court to review the opinion of the Court of Civil Appeals. CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED AND AWARD OF BENEFITS REINSTATED. Patrick Parr, Brandy L. Shores, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma, for Petitioners, Gregory G. Meier, Angeline S. Morris, Meier & Associates, Tulsa, Oklahoma, for Respondents. REIF, V.C.J.: ¶1 The dispositive question in this case is whether Claimant's injury while leaving work in response to a family medical emergency arose out of her employment. The Workers' Compensation Court answered this question in the affirmative. In a review proceeding brought by Employer, the Court of Civil Appeals disagreed, ruling claimant was on a personal mission at the time of her injury and, therefore, the injury did not arise out of her employment. Upon certiorari review sought by Claimant, we note that an employee's purpose in leaving work is relevant, but not dispositive, in deciding whether going and coming injuries arise out of employment. The test for such injuries is set forth in Corbett v. Express Personnel, 1997 OK 40, ¶ 8, 936 P.2d 932, 934. The material undisputed facts in the case at hand establish as a matter of law that claimant's injury was compensable under the second factor in the Corbett test. ¶2 In Corbett, this Court said: "When they occur on premises owned or controlled by the employer, injuries sustained by an employee while going to or from work may be compensable in certain circumstances if (a) the claimant's employment is shown to have a connection to the causative risk encountered, or (b) the precipitating risk of harm was created (or maintained) by the employer." Id. (footnotes omitted). In the case at hand, it is undisputed that "the precipitating risk of harm" was a rug Employer placed outside the door that employees, such as Claimant, used to exit Employer's school building. Claimant's undisputed testimony established that "the rug slipped out from under [her]" and "scooted" in her first effort to get up. Claimant related that she was unable to get up until she crawled off the rug to the solid sidewalk. ¶3 We are mindful that the Corbett case disallowed workers' compensation benefits to an injured employee who left work early on a personal mission. However, the employee in Corbett was injured "when he lost control of [his motorcycle] and hit a fence upon the premises." ¶ 4, 936 P.2d at 933. Other than permit the employee to depart early, the employer in Corbett did nothing to create the risk or to contribute to the injury sustained by the departing employee. As the Corbett opinion explained: "[C]laimant's injuries arose out of his personal mission because the causative risks he encountered on his harm-dealing errand . . . can be regarded neither as job-related nor as hazards created by the employer." ¶ 3, 936 P.2d at 933 (emphasis in original). In contrast, Employer in the case at hand placed the rug outside the door in question. ¶4 Although not raised by the parties nor addressed by the Court of Civil Appeals, we note that Claimant's injury, occurring on February 25, 2011, was governed by the statutory definition of employment set forth in 85 O.S.Supp 2010, § 11(A)(5). This statute provides, in pertinent part, that "Employment shall be deemed to commence when an employee arrives at the employee's place of employment to report for work and shall terminate when the employee leaves the employee's place of employment." This statutory definition contains only two exclusions: (1) injuries in areas not under the control of the employer, and (2) injuries in areas where essential job functions are not performed. ¶5 Neither of these exclusions apply to the case at hand, because (1) the door through which Claimant exited the school building was under the control of Employer school, and (2) entering and leaving the building where she worked through a door provided and maintained by Employer for that purpose was essential to Claimant's job function. Not only are these exclusions inapplicable to the case at hand, they do not manifest any intent to abrogate coverage under Corbett for a going or coming injury where the precipitating risk of harm was created or maintained by the employer. ¶6 In the case of Intermedix Corp. v. Wolf, 2013 OK CIV APP 82, 313 P.3d 287, the Court of Civil Appeals did apply section 11(A)(5) to preclude coverage for an employee (1) who was injured while leaving work and (2) who had not left the building where her employer's office was located. However, the dispositive fact in that case was that the stairway upon which she fell was owned and maintained by the landlord of the building where employer rented space, and was not owned or maintained by the employer. In other words, the employment of the injured employee in the Wolf case ended when she entered the common stairway. In contrast, Claimant in the case at hand was still within the statutory definition of employment and protected by the rule in Corbett as she passed through the doorway. ¶7 The record in the case at hand consists largely of Claimant's undisputed testimony. Employer school did not deny that it placed the rug outside the door in question, contest Claimant's right to use the door to leave the building in which she worked or attempt to show that the rug was not slippery as Claimant described. ¶8 Where there is no conflict in the evidence and no opposite inferences to be drawn from undisputed proof, the question of whether an injury arises out of and in the course of employment is one of law. Lanman v. Oklahoma County Sheriff's Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798. Questions of law are reviewed by a de novo standard under which this Court has plenary, non-deferential and independent authority to determine whether lower courts have erred in their legal rulings. Patterson v. Sue Estell Trucking Co., 2004 OK 66, ¶ 5, 95 P.3d 1087, 1088. ¶9 Upon de novo review of the undisputed evidence in the case at hand, we hold that employer's rug, which slipped out from under Claimant and caused her to fall was a precipitating risk of harm created by employer. As such, the injury that Claimant sustained as a consequence arose out of Claimant's employment as defined by 85 O.S.2010, § 11(A)(5) and under the second factor in the Corbett test, notwithstanding the personal mission that prompted Claimant to depart work early. The opinion of the Court of Civil Appeals, ruling that Claimant's injury did not arise out of her employment, was in error and is vacated. Because the Workers' Compensation Court correctly determined that Claimant's injury did arise out of her employment, the award of benefits ordered by that court is reinstated. CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED AND AWARD OF BENEFITS REINSTATED. ¶10 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS and GURICH, JJ., concur. ¶11 KAUGER, WINCHESTER, and TAYLOR, JJ., dissent.

bb698104-2cc3-4d99-a078-e9802b66d245

Guffey v. Ostonakulov

oklahoma

Oklahoma Supreme Court

GUFFEY v. OSTONAKULOV2014 OK 6Case Number: 112270Decided: 02/11/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SAMANTHA GUFFEY, individually, Plaintiff/Appellant, v. ODIL OSTONAKULOV, individually and MOTORCARS OF NASHVILLE INC. a Tennessee corporation, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE BRYAN C. DIXON DISTRICT JUDGE ¶0 Plaintiff/Appellant Samantha Guffey (Guffey), an Oklahoma resident, filed a lawsuit against Defendants Odil Ostonakulov (Ostonakulov) and Motorcars of Nashville, Inc. (MNI), a resident of Tennessee and a Tennessee corporation, respectively, in the District Court of Oklahoma County. Guffey alleged fraud and violations of the Oklahoma Consumer Protection Act, 15 O.S. §751 et seq.in connection with her purchase of a vehicle from Defendants using the auction site eBay. On September 20, 2013, the trial court dismissed the action because it determined Oklahoma lacked jurisdiction over Defendants. Guffey appealed. We hold that because Defendants possessed sufficient minimum contacts with the State of Oklahoma, the district court possessed in personam jurisdiction over Defendants. JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Paul E. Quigley, Quigley, Henry & Hill, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Craig Edward Brown and Evan A. McCormick, Wheeler, Wheeler, Morgan, Faulkner and Brown, Oklahoma City, Oklahoma, for Defendants/Appellees. COMBS, J.: ¶1 The only question presented on appeal is whether the district court possesses in personam jurisdiction over a Tennessee individual and corporation, who sold a motor vehicle to an Oklahoma resident. We hold that the district court possesses jurisdiction. The totality of contacts in this cause indicates that the exercise of in personam jurisdiction is proper and does not violate the due process rights of Defendants/Appellees. Alleged Facts and Procedural History ¶2 Guffey is a resident of Oklahoma County, Oklahoma. Ostonakulov is a resident of the State of Tennessee and MNI is a Tennessee corporation with its principle place of business in Nashville, Tennessee. MNI operates a used car lot in Nashville, Tennessee. On or about June 11, 2012, Guffey was the winning bidder on a used 2009 Volvo XC 90 listed for auction on eBay, Inc. by MNI. Guffey, after receiving the vehicle, determined that the vehicle was not in the condition advertised, and filed a Petition in the District Court of Oklahoma County on December 19, 2012. In her petition, Guffey alleged Defendants engaged in fraud as well as violations of the Oklahoma Consumer Protection Act, 15 O.S. §751 et seq. ¶3 On May 10, 2013, Defendants moved to dismiss for lack of personal jurisdiction pursuant to 12 O.S. 2011 §2012(B)(2), on the grounds that they did not possess minimum contacts with Oklahoma sufficient for the state to exercise in personam jurisdiction without implicating due process concerns.1 Guffey filed a Response to Defendants' Motion to Dismiss and Motion to Allow Amended Petition on June 24, 2013, arguing that in personam jurisdiction was proper because the minimum contacts requirement has been satisfied. Guffey's Response also included an affidavit by her attesting to the facts she alleges are sufficient to provide for in personam jurisdiction. ¶4 Guffey's affidavit provides that she bid on the Volvo that is the subject of the underlying dispute on eBay in part based on a thirty-day limited warranty after the purchase, included in the record. Guffey's affidavit indicates that after she bid, but several days before the closing date of the auction, she received an email solicitation from Ostonakulov suggesting she contact him by phone and negotiate a buy it now price for the vehicle. She chose not to do so, but only after calling and speaking with him personally about the matter. After she discovered that she won the auction with the highest bid, she asserts she had her father call and speak to Ostonakulov about the final details of the matter and payment instructions. She then signed a purchase agreement that was mailed to her father's offices in Oklahoma City by Ostonakulov, and returned it to Tennessee. Ostonakulov also helped to arrange shipping of the vehicle to Oklahoma, where Guffey took delivery. ¶5 Guffey further asserts that this eBay sale is not an isolated transaction for Defendants, and that they are an active "power seller" on eBay, averaging 12-35 cars for sale every day, and advertising 942 cars on the site. Guffey also asserts that she knows of at least three cars sold by Defendants in the state of Oklahoma, and believes they have sold more than thirty cars to residents of the state. ¶6 With leave of the trial court, Guffey filed an Amended Petition on July 28, 2013, containing many of the facts she first provided in her affidavit, alleging an exercise of in personam jurisdiction over the Defendants by the trial court was proper. Defendants again moved to dismiss on July 17, 2013, asserting that because Guffey's Amended Petition contained no affidavit or other written materials, to support its stated facts, that would support its jurisdictional allegations, it was facially deficient and did not comport with a prima facie showing of personal jurisdiction over Defendants. ¶7 Guffey filed a response to the Defendants' second motion to dismiss on August 2, 2013, asserting that her Amended Petition and the affidavit accompanying her Response to Defendants' first motion to dismiss were sufficient to illustrate the existence of minimum contacts so as to justify the trial court's exercise of in personam jurisdiction, and requesting time from the trial court to conduct discovery with regard to Ostonakulov's contacts with the State of Oklahoma. ¶8 The trial court held a hearing on Defendants' second Motion to Dismiss on November 6, 2013, where the parties argued the issue of in personam jurisdiction. In an order dated September 20, 2013, the trial court sustained Defendants' Motion to Dismiss and dismissed the action for lack of in personam jurisdiction over Defendants.2 Guffey appealed, and this cause was retained on the Court's own motion and assigned to this office on November 20, 2013. Standard of Review ¶9 In Oklahoma, a special appearance with a motion to dismiss is the proper method for challenging in personam jurisdiction. Powers v. District Court of Tulsa County, 2009 OK 91, ¶7, 227 P.3d 1060; In re Turkey Creek Conservancy District, 2008 OK 8, n. 4, 177 P.3d 558; Southard v. Oil Equipment Corp., 1956 OK 74, 296 P.2d 780. In Powers, this Court explained that a defendant challenging in personam jurisdiction has an initial procedural burden to raise the facts challenging in personam jurisdiction, usually by accompanying a motion to dismiss with an affidavit or a statement from the attorney what proof would be shown at an evidentiary hearing, to be followed by a response from the party asserting jurisdiction also accompanied by affidavits. Powers, 2009 OK 91, ¶7. ¶10 When in personam jurisdiction is challenged, the jurisdiction over a non-resident defendant cannot be inferred, but instead must affirmatively appear from the trial court record, and the burden of proof in the trial court is upon the party asserting that jurisdiction exists. Powers, 2009 OK 91, ¶7; Gilbert v. Security Financial Corp., 2006 OK 58, ¶2, 152 P.3d 165; Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶20, 115 P.3d 829. The determination of in personam jurisidiction is a legal ruling, subject to de novo review by this Court, and this Court will canvas the record for proof3 that the nonresident party had sufficient contacts with the state to assure that traditional notions of fair play and substantial justice will not be offended if this state exercises in personam jurisdiction. Conoco, Inc., 2004 OK 83, ¶¶9 & 20. ¶11 In Personam Jurisdiction Requires Sufficient Minimum Contacts with the State of Oklahoma so that the Exercise of Jurisdiction Does not Offend Traditional Notions of Fair Play and Substantial Justice. ¶12 In personam jurisdiction is the power to deal with the person of the defendant and render a binding judgment against that defendant. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶16, 115 P.3d 829; Gilbert v. Security Finance Corp. of Oklahoma, Inc., 2006 OK 58, ¶16, 152 P.3d 165; Hobbs v. German-American, 1904 OK 60, ¶5, 78 P. 356. In personam jurisdiction may be acquired either by service of process or by voluntary appearance before the court. Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F), known as the long-arm statute, allows jurisdiction over non-residents in Oklahoma court's by providing for service of process outside of the state. Mastercraft Floor Covering, Inc. v. Charlotte Flooring, Inc., 2013 OK 87, ¶10, 313 P.3d 911; Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F) provides: "[a] court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States." ¶13 This Court has previously stated that the intent of the long-arm statute is to extend the jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the Oklahoma Constitution and the due process clause of the United States Constitution. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶10; Conoco, Inc., 2004 OK 83, ¶17; Fields v. Volkswagon of America Inc., 1976 OK 106, ¶6, 555 P.2d 48. The outer limits of what constitutes due process in regard to in personam jurisdiction have been set and described in some detail by the Supreme Court of the United States. Conoco, Inc., 2004 OK 83, ¶17. ¶14 In the seminal case of International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement et al., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), the Supreme Court of the United States created what is colloquially deemed the minimum contacts test when it determined: due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." 326 U.S. at 316, 66 S.Ct at 158 (quoting Millikin v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940)). Whether sufficient minimum contacts exist, and due process is satisfied, depends upon the "quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to ensure." International Shoe Co., 326 U.S. at 319. Requiring sufficient minimum contacts protects a person's liberty interest in not being subjected to a binding judgment in a forum where the person has no meaningful contacts, ties, or relations. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528; Conoco, Inc., 2004 OK 83, ¶18. ¶15 Applying federal jurisprudence, this Court has held that when a non-resident deliberately engages in significant activities in a forum state or creates continuing obligations between the non-resident and the residents of the forum, the non-resident submits to the jurisdiction of the state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. Jurisdiction under the long-arm statute is predicated on foreign state activity that results in forum state harm. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7. A non-resident who has purposefully directed activities at forum residents must present a compelling case that jurisdiction would be unreasonable or that the exercise of in personam jurisdiction would offend the traditional notions of substantial justice and fair play. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7. ¶16 When a non-resident corporation exercises the privilege of conducting activities in a state, it also enjoys the benefits and protections of the laws of that state and any obligations connected with that activity may be enforced in that state's courts. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; International Shoe Co., 326 U.S. at 319. The focus is on whether there is some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; Hanson v. Denckla¸ 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958). Due process requires that the non-resident defendant's conduct and connection with the forum state are such that the nonresident could have reasonably anticipated being haled into court in that state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; World-Wide Volkswagon Corporation v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). A single act can support jurisdiction so long as it creates a substantial connection with the forum state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957). ¶17 Sufficient Minimum Contacts Exist between Defendants and the State of Oklahoma for the Exercise of In Personam Jurisdiction to be Proper. ¶18 The question of in personam jurisdiction arising from a transaction on eBay is one of first impression for this Court. Defendants focus on the eBay listing and assert that merely placing an item on sale through eBay in all fifty states is insufficient to establish minimum contacts with the state of the winning bidder: [t]he question to be answered is, "Does placing an item for sale on eBay to all 50 states subject the seller to the laws of the state of the winning bidder at auction?" Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, p. 4. The Defendants cite several cases from other jurisdictions in support of this proposition.4 In one of those cases, Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008), the Court of Appeals for the Ninth Circuit held that a single transaction for the sale of a vehicle over eBay did not satisfy the minimum contacts requirement, noting that "on the facts of this case--a one-time transaction--the use of eBay as the conduit for that transaction does not have any dispositive effect on jurisdiction." Boschetto, 539 F.3d at 1019. ¶19 However, this Court agrees with another determination made by the Court of Appeals for the Ninth Circuit in Boschetto, that "[a]t the bottom, the consummation of the sale via eBay here is a distraction from the core issue: This was a one-time contract for the sale of a good that involved the foreign state only because that is where the purchaser happened to reside, but otherwise created no 'substantial connection' or ongoing obligations there." 539 F.3d at 1019. The question presented here is not whether a single eBay transaction, in and of itself, provides the minimum contacts necessary for the exercise of in personam jurisdiction to be proper,5 but rather whether the totality of contacts makes an exercise of jurisdiction proper. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶18. ¶20 Boschetto is distinguishable from the facts of this case, a distinction that the Court of Appeals for the Ninth Circuit was well aware of when it issued its ruling. The court stated: [the plaintiff] does not allege that any of the Defendants are using eBay to conduct business generally. He does not allege that Defendants conduct regular sales in California (or anywhere else) via eBay.. This is a distinction with a difference, as the cases that have found that jurisdiction was proper based on eBay sales relied heavily on the fact that the defendant was using the platform as a broader vehicle for commercial activity. See, e.g., Crummey v. Morgan, 965 So. 2d 497, 500 (Ct.App.La.2007) (evidence of two prior sales to Louisiana residents in prior year); Dedvukaj v. Maloney, 447 F. Supp. 2d 813, 822-23 (E.D.Mich.2006) ("Although the Court's research has not disclosed any personal jurisdiction cases involving the use of eBay auctions as a commercial seller's primary marketing vehicle, it is clear from the record that Defendants' use of eBay is regular and systemic."); Malcolm v. Esposito, 2003 WL 23272406 at *4 (Va.Cir.Ct. Dec. 12, 2003) ("Defendants are commercial sellers of automobiles who, at the time the BMW was sold, were represented on eBay as 'power sellers' with 213 transactions."). Boschetto, 539 F.3d at 1019. Finally, the court concluded that: Where eBay is used as a means for establishing regular business with a remote forum such that a finding of personal jurisdiction comports with "traditional notions of fair play and substantial justice," International Shoe Co., 326 U.S. at 316, 66 S. Ct. 154, then a defendant's use of eBay may be properly taken into account for purposes of establishing personal jurisdiction. Boschetto, 539 F.3d at 1019. From the record, what we have here is not a single, isolated transaction on eBay made by a random seller. Defendants are involved in the commercial enterprise of selling cars. Guffey alleges that Defendants use eBay as a central and regular aspect of their business, allowing them reach out to and sell to potential buyers in numerous states, including Oklahoma. Defendants do not dispute this fact, and instead assert that their use of eBay as the medium for the transactions prevents the establishment of minimum contacts with any state where a purchaser resides, simply because Defendants do not choose the buyer or the state where the buyer is located. ¶21 We do not find that argument persuasive. The question is whether sufficient minimum contacts are present such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co., 326 U.S. at 316, 66 S.Ct at 158. The Defendants' use of eBay to make multiple sales is systemic and appears to be a core part of their business. Guffey's affidavit alleges this is not the first sale they have made in Oklahoma by those means. In this cause, the auction itself was not the only contact between Defendants and Guffey, in Oklahoma, as part of the underlying transaction. Defendants argue that an exercise of jurisdiction would be unfair because they had no control over the winner of the auction, and yet they reached out to Guffey prior to the completion of bidding in an attempt to negotiate a sale outside of eBay's bidding process. Guffey interacted directly with Ostonakulov, and communications were also exchanged between the Defendants and her father's office. Further, the vehicle at issue was the subject of a thirty-day limited warranty that created a continuing obligation between Defendants and a resident of this state, after the vehicle was shipped to Guffey here in Oklahoma.6 ¶22 Unlike the situation in Boschetto, this was not a single, isolated transaction that involved the unilateral activity of Guffey. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶16. This Court will not focus merely on the eBay listing or sale itself, but rather, the totality of contacts between the non-resident defendants and Oklahoma. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶18; Gregory v. Grove, 1976 OK 5, ¶6, 547 P.2d 381. ("Totality of contacts between the parties in Oklahoma are to be considered in determining the sufficiency to exercise jurisdiction under long-arm service."). ¶23 Cases in other jurisdictions cited by Defendants, in the same vein as Boschetto, are factually distinguishable for similar reasons. In Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746 (E.D. Mich. 2000), the court determined two sales to a Michigan resident through eBay were insufficient to establish Michigan jurisdiction over a nonresident defendant. The court also held, however, that: Plaintiff identifies no continuing relationship between Defendant and anyone or anything in Michigan, save the craft pattern purchases made from Plaintiff itself. The only contact that McCauley is proven to have had with the State of Michigan is fortuitous and de minimus: the results of two auction sales underpinning the instant dispute, and over which Defendant had little, if any, control. Winfield Collection, Ltd., 105 F. Supp. 2d at 751. Here, Guffey alleges both greater contact than the fortuitous winning of an isolated eBay auction, and further alleges multiple other Oklahoma sales and ongoing obligations in Oklahoma by the Defendants in the form of a warranty. Cf. Malone v. Berry, 881 N.E.2d 283, ¶14 (Ohio Ct. App. 2007) ("We further note there are no facts indicating that the activity at issue involved more than a single transaction."); Machulsky v. Hall, 210 F. Supp. 2d 531 (D.N.J. 2002) (Plaintiff failed to show Defendants engaged in more than single internet transactions with forum state.) Metcalf v. Lawson, 148 N.H. 35, 40; 802 A.2d 1221, 1227 (N.H. 2002) ("what appears to be the isolated nature of this transaction and the absence of any evidence that the defendant was a commercial seller militate against a finding of jurisdiction.") ¶24 By way of contrast, in situations similar to this, where the defendants were commercial sellers engaged in systematic sales through eBay, at least one other federal court has found the exercise of jurisdiction to be appropriate. In Dedvukaj v. Maloney, 447 F. Supp. 2d 813 (E.D. Mich. 2006), the court determined that an exercise of in personam jurisdiction over the defendant eBay sellers was proper, rejecting their argument that "so long as an auction is not expressly targeted at a particular forum state, jurisdiction will only be proper in the seller's home state." Dedvukaj, 447 F. Supp. 2d at 820. Concerning the nature of eBay transactions, the court explained: Internet forums such as eBay expand the seller's market literally to the world and sellers know that, and avail themselves of the benefits of this greatly expanded marketplace. It should, in the context of these commercial relationships, be no great surprise to sellers--and certainly no unfair burden to them--if, when a commercial transaction formed over and through the internet does not meet a buyer's expectations, they might be called upon to respond in a legal forum in the buyer's home state. Sellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it. Dedvukaj, 447 F. Supp. 2d at 820.7 CONCLUSION ¶25 The Supreme Court of the United States has warned against permitting the march of technological progress to destroy traditional notions of personal jurisdiction.8 However, the Court has largely left it to lower federal and state courts to work out how to strike the proper balance in an increasingly connected age. The use of a third-party auction site such as eBay as a vehicle for sales cannot serve as a shield and absolute bar to the exercise of in personam jurisdiction by this state, merely because the seller does not choose the buyer or the buyer's state, when otherwise sufficient minimum contacts exist so that the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7. ¶26 Defendants are involved in the commercial sale of vehicles to numerous states, and eBay is a primary means through which they conduct these sales. Defendants negotiated with Guffey directly over the vehicle eventually sold to her in Oklahoma, warrantied that vehicle while it was to be titled and driven in Oklahoma, and have allegedly engaged in more than one such transaction in this state. The totality of Defendants' contacts with Oklahoma constitute more than sufficient minimum contacts for the exercise of in personam jurisdiction to be reasonable and comport with traditional notions of fair play and substantial justice. JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION ALL JUSTICES CONCUR FOOTNOTES 1 Title 12 O.S. 2011 §2012 provides in pertinent part: B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of jurisdiction over the subject matter; 2. Lack of jurisdiction over the person; 3. Improper venue; 4. Insufficiency of process; 5. Insufficiency of service of process; 6. Failure to state a claim upon which relief can be granted; 7. Failure to join a party under Section 2019 of this title; 8. Another action pending between the same parties for the same claim; 9. Lack of capacity of a party to be sued; and 10. Lack of capacity of a party to sue. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted shall separately state each omission or defect in the petition, and a motion that does not specify such defects or omissions shall be denied without a hearing and the defendant shall answer within twenty (20) days after notice of the court's action. 2 It appears from the transcript of proceedings before the trial court on August 23, 2013, that the court granted Defendants' Motion to Dismiss in order to allow for speedy appellate review and guidance concerning this issue of first impression. The trial court stated: We've got some specific things that happened here in this case that may make a difference as to the jurisdiction or not, but I think an appellate court needs to look at this and resolve this issue. Jurisdiction is very important and we certainly don't want to proceed with something if we don't have jurisdiction here in the State. So I'm going to go ahead and sustain it as per journal entry. Let's get a ruling from the appellate court about this because I'm sure EBay transactions are going to come up more and more often around here. Supplement to Record on Accelerated Appeal, Transcript of Proceedings had on August 23, 2013, Before the Honorable Bryan C. Dixon, p. 14. 3 The record indicates that Defendants did not provide an affidavit with either of their Motions to Dismiss for Lack of Personal Jurisdiction (filed on May 10, 2013 and July 17, 2013). The only affidavit contained within the record is the one attached to Guffey's two Responses to Defendants' Motions to Dismiss. While the trial court held a hearing, it made no finding of facts. Journal Entry, Sep. 20, 2013, Record on Accelerated Appeal, 7. It would appear that Defendants are challenging the facial sufficiency of Guffey's petition. See, e.g., Powers, 2009 OK 91, ¶8 ("Husband's motion to dismiss was not accompanied by affidavit of Husband or counsel showing what proof would show at an evidentiary hearing to adjudicate contested facts. The motion was not accompanied by an evidentiary substitute. Husband's §2012(B)(2) motion to dismiss challenging in personam jurisdiction thus challenges the facial sufficiency of Wife's petition."). 4 While pronouncements of federal law questions by inferior federal court are not binding on this Court, they are persuasive. Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶18, 90 P.3d 546; Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 30, 977 P.2d 1040; Dority v. Green Country Castings Corp.,1986 OK 67, ¶ 11, n. 24, 727 P.2d 1355). 5 This court has emphasized, however, that a single transaction can be enough to make an exercise of in personam jurisdiction proper, so long as it creates a substantial connection with the forum state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957). 6 The warranty document provided in the record does not contain any choice of law provisions or a venue selection clause that would indicate the exercise of in personam jurisdiction by a court of this state would be improper. Plaintiff's Response to Defendants' Motion to Dismiss, Exhibit 1. 7 In Dedvukaj the court applied the "sliding scale" analysis of interactivity introduced in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Penn. 1997) as a tool to help determine the appropriateness of exercising in personam jurisdiction. This analysis requires an examination of the interactivity level of websites in order to gauge whether sufficient contacts are present. However, the test in Zippo was created to analyze jurisdictional requirements in causes where the defendants were operators of the website in question. This Court agrees with the Court of Appeals for the Ninth Circuit and other courts that have determined the sliding scale analysis developed in Zippo is inapplicable to a case involving sales over eBay. See, e.g., Boschetto, 539 F.3d at 1018. Defendants in this cause do not run eBay. The question here is not whether jurisdiction over eBay or its operators is proper, but whether jurisdiction over Defendents, who are using it as a vehicle for sales, is proper. We have not applied the Zippo "sliding scale" analysis in such a fashion before and decline to do so now, but agree with the Dedvukaj court that regular and systematic use of a site such as eBay is a valid factor for consideration. Boschetto, 539 F.3d at 1019; Dedvukaj, 447 F.Supp2d at 822-23. 8 The Court stated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292-93, 100 S. Ct. 559, 565, 62 L. Ed. 2d 490 (1980): [t]he limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years. As we noted in McGee v. International Life Ins. Co., supra, 355 U.S., at 222-223, 78 S.Ct., at 201, this trend is largely attributable to a fundamental transformation in the American economy: "Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." The historical developments noted in McGee, of course, have only accelerated in the generation since that case was decided. Nevertheless, we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution.  

9c2aa498-6ce8-40eb-a811-ad9f252cff79

MacDonald v. Corporate Integris Health

oklahoma

Oklahoma Supreme Court

MacDONALD v. CORPORATE INTEGRIS HEALTH2014 OK 10Case Number: 111717Decided: 02/25/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GUINDELEE MacDONALD, Plaintiff,v.CORPORATE INTEGRIS HEALTH and INTEGRIS HEALTH, Defendants. FEDERAL CERTIFIED QUESTION ¶0 On August 20, 2012, plaintiff filed suit against her former employer in the United States District Court for the Western District of Oklahoma. Plaintiff alleged employer violated both federal law and the Oklahoma Anti-Discrimination Act (OADA), 25 O.S.2011, §§ 1101 through 1706, in terminating her employment. More particularly, she alleged employer discriminated against her on the basis of her age and gender. In addition to relief provided by federal law, plaintiff alleged she was entitled to the full range of normal tort damages, including punitive damages, on her state law claim. Anticipating employer's defense that § 1350 of the OADA limits damages for discrimination claims, plaintiff alleged the damage limitations in the OADA are unconstitutional under Oklahoma's prohibition against special laws. Citing the lack of Oklahoma precedent on this issue, the United States District Court for the Western District of Oklahoma certified to this Court the question of whether the damage provisions in § 1350 of the OADA are unconstitutional under Article V, §§ 46 and 59 of the Oklahoma Constitution. On May 30, 2013, this Court accepted the certified question and the parties completed briefing on August 30, 2013. Upon review, we hold the damage provisions in § 1350 are not unconstitutional under Article V, §§ 46 and 59. CERTIFIED QUESTION ANSWERED. Mark Hammons, Amber L. Hurst, HAMMONS, GOWENS & ASSOCIATES, Oklahoma City, Oklahoma for Plaintiff,Leonard Court, Courtney K. Warmington, CROWE & DUNLEVY, Oklahoma City, Oklahoma for Defendants. REIF, V.C.J.: ¶1 This Court is asked to decide whether the damage provisions in section 1350 of the Oklahoma Anti-Discrimination Act (OADA), 25 O.S.2011, §§ 1101 through 1706, violate the special law prohibitions in Article 5, §§ 46 and 59 of the Oklahoma Constitution. This issue arose in a case filed in the United States District Court for the Western District of Oklahoma. The plaintiff alleged her former employer terminated her employment in violation of both federal law and the OADA. Unlike the "all detriment" common law damage remedy for wrongful termination, section 1350 of the OADA limits damages to back pay and liquidated damages. Plaintiff has contended that section 1350 is a special law because it provides different relief to victims of discrimination-based termination than the relief provided for victims of other terminations in violation of Oklahoma public policy. In essence, Plaintiff believes this difference in relief for "wrongful terminations" is the type of inequality in the treatment of tort victims that the Oklahoma Constitution forbids in Article 5, §§ 46 and 59. Citing the absence of Oklahoma precedent on this issue as well as the need to determine plaintiff's remedies for her state law claim, the federal court certified this constitutional question to this Court. ¶2 The federal court's certification order sets forth the factual background for this controversy. The certification order relates (1) plaintiff was an employee of the defendants from August 1998 through May 4, 2012; (2) plaintiff was 56 years old at the time of her termination; (3) plaintiff was one of the oldest employees in her department at the time of her termination; (4) plaintiff's supervisor made ageist and gender-based comments; (5) after plaintiff's supervisor was elevated to Director of Radiology, he began to terminate older employees and replace them with younger employees; (6) plaintiff was replaced by a younger female who was approximately in her twenties; (7) plaintiff was told she was terminated for bullying a coworker; and (8) plaintiff filed her federal court complaint on August 20, 2012, alleging violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(3), the Age Discrimination in Employment Act, 29 U.S.C. § 626(c), and the Oklahoma Anti-Discrimination Act, 25 O.S.2011, §§ 1101 through 1706. ¶3 In addition to this background, the parties' federal court pleadings further frame the controversy over the relief plaintiff may recover in the event she succeeds on her state court claim. Plaintiff's complaint and amended complaint both allege plaintiff was the victim of age and gender discrimination. They also assert that "the OADA damage caps are unconstitutional under Oklahoma's prohibitions against special laws, and that Plaintiff is entitled to the full range of normal tort damages." These pleadings further claim that "Plaintiff is entitled to an award of punitive damages under both federal and Oklahoma law." In their answers to these complaints, defendants maintain: "Any damages available to plaintiff under state law for age and/or gender discrimination are limited to those enumerated in 25 O.S. § 1350." ¶4 Section 13501 became effective November 1, 2011, and was in effect on May 4, 2012, the date of plaintiff's termination. This statute expressly creates a cause of action for employment-based discrimination and abolishes common law remedies for such wrong. In the place of common law remedies for employment-based discrimination, section 1350 authorizes a court (1) to enjoin unlawful discrimination employment practices, (2) to grant affirmative relief such as reinstatement, (3) to award back pay, and (4) to award an additional amount for liquidated damages. While this relief is certainly more limited than the "all detriment" common law remedy provided for most non-discrimination based wrongful termination claims, that difference alone does not make section 1350 a special or non-uniform law forbidden by Article 5, §§ 462 and 593 of the Oklahoma Constitution. The test is "whether the statute operates on an entire class of actionable claims that are similarly situated." Reynolds v. Porter, 1988 OK 88, ¶ 18, 760 P.2d 816, 823. ¶5 To demonstrate that section 1350 fails the Reynolds test, plaintiff argues that all victims of wrongful termination are a similarly situated class of tort victims in the same way all victims of negligence were recognized to be in Wall v. Marouk, 2013 OK 36, 302 P.3d 775, and Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861. Plaintiff points out that discrimination based terminations have always been actionable in tort as an exception to the employment at will doctrine and as a wrongful discharge in violation of public policy. ¶6 Despite the strong logical appeal of this analogy, it fails to consider the reasons this Court recognized tort liability for wrongful termination of an at will employee in the first place; that is, the need to protect an important public policy, to deter employers from discharging employees to the detriment of public policy and to compensate wrongfully terminated employees who were either protected by the public policy or who had acted consistently with the public policy. See Burk v. K-Mart Corp., 1989 OK 22, ¶ 14, 770 P.2d 24, 28 (citing Vigil v. Arzola, 699 P.2d 613 (N.M. Ct. App.1983), rev'd in part on other grounds, 687 P.2d 1038 (1984) (the focus of an action for wrongful discharge by an employer of an at will employee is upon the employer's duty to act in accordance with public policy)). Tort liability for discharging at will employees in violation of public policy was "judicially created," because there was no other remedy to protect the public policy and it was preferable to extending the implied duty to deal fairly and in good faith to the discharge of at will employees. However, it is axiomatic that the Legislature can declare and change public policy in the area of at will employment and is empowered to provide the measures it deems necessary to protect that public policy. See Shephard v. CompSource Oklahoma, 2009 OK 25, ¶¶ 4-7, 209 P.3d 288, 290-92. ¶7 We have said that this State's public policy to protect Oklahoma citizens from discrimination based on a protected status is set forth in the OADA. Smith v. Pioneer Masonry, Inc., 2009 OK 82, ¶ 12, 226 P.3d 687, 689. We have also firmly established that victims of discrimination based on any protected status comprise a single, unified class to determine whether a remedy is uniformly applied to the class. Id. at ¶ 10, 226 P.3d at 689; Shephard, 2009 OK 25 at ¶ 10, 209 P.3d at 292; Shirazi v. Childtime Learning Center, Inc., 2009 OK 13, ¶ 11, 204 P.3d 75, 79; Kruchowski v. Weyerhaeuser Co., 2008 OK 105, ¶ 9, 202 P.3d 144, 148; Saint v. Data Exchange Inc., 2006 OK 59, ¶ 6, 145 P.3d 1037, 1038; Collier v. Insignia Financial Group, 1999 OK 49, ¶ 14, 981 P.2d 321, 326-27. To satisfy uniformity, it is not necessary that the remedy to protect against status based discrimination be the same as the remedy provided in cases where an employee's conduct, like whistleblowing, is alleged to have triggered a discharge. The core reason that the remedies for these two types of wrongful termination need not be commensurate is that the remedies protect different public policies. ¶8 As for the case at hand, the Legislature has determined that Oklahoma's public policy reflected in the OADA is better protected by the statutory cause of action and relief set forth in section 1350, rather than tort liability that this Court had recognized in the absence of Legislative action. In Shirazi, ¶ 9, 204 P.3d at 78, we reaffirmed the rule in Kruchowski, ¶ 32, 202 P.3d at 153, that one of the thresh hold showings that a plaintiff must make in order to maintain a Burk claim in tort is that "a breach of Oklahoma's public policy occurred for which there is no statutorily-crafted remedy." In Shephard, we squarely held: "Where a statutory remedy exists that is sufficient to protect the Oklahoma public policy goal, an employee has an adequate remedy that precludes resort to a tort cause of action to redress termination in violation of public policy." Shephard, 2009 OK 25 at ¶ 12, 209 P.3d at 293. ¶9 In Shephard, we concluded that the Legislature had properly limited state employee whistleblowers to statutory remedies in protecting the State's public policy to encourage disclosure of wrongdoing in State government. We did so despite the fact that whistleblowers in private employment were protected by tort liability. Again, such dichotomy is permissible due to the difference in the public policies being protected. In the case of state employee whistleblowers the policy served is very specific to preventing corruption in, and preserving the integrity of, state government, while in the case of whistleblowers in private employment the policy served is the more general policy of protecting the public health and safety. See Hayes v .Eateries, Inc., 1995 OK 108, ¶¶ 19-30, 905 P.2d 778, 785-88. Tort liability to protect whistleblowers likewise was originally recognized only because the Legislature had not otherwise provided a remedy to protect employees, both public and private, who acted to further the respective public policies served by whistleblowing. ¶10 In wrongful termination cases, more properly discharge in violation of public policy, class membership for purposes of a special law/uniformity analysis is not determined by labeling the claim a "tort claim" and treating all persons with such a "tort claim" as similarly situated. Class membership is determined by the public policy that is offended by the discharge of an employee who is either protected by the public policy or has acted in way that is consistent with the public policy. Employees who are similarly situated in these regards must be afforded a uniform remedy to redress an employer's discharge in violation of the public policy. Shirazi, 2009 OK 13, ¶ 12, 204 P.3d at 79. ¶11 The Legislature has declared that the OADA "provides the exclusive remedies within this state . . . for individuals alleging discrimination in employment on the basis of race, color, national origin, sex, religion, creed, age, disability or genetic information." 25 O.S.2011, § 1101(A) (emphasis added).4 To leave no doubt about the intended effect of this declaration of purpose, the Legislature further expressly provided that "any common law remedies are hereby abolished." 25 O.S.2001, § 1350(A). Among the exclusive remedies provided in the OADA is a "cause of action for employment based discrimination." Id. Any victim of discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information can pursue such cause of action upon exhausting the administrative remedies provided in the OADA. Title 25 O.S.2011 § 1350(B) (C) and (D)5. The relief provided in subsection (G) of § 1350 - enjoining unlawful, discriminatory employment practices, and affirmative relief such as reinstatement, back pay, and liquidated damages - is available to all victims of status-based discrimination, depending upon the circumstances of an individual case. Clearly, the OADA in general and section 1350 in particular "operate on the entire class of actionable claims that are similarly situated." Accordingly, our answer to the certified question is that the damage provisions of section 1350 do not violate the special law prohibitions of Article 5, §§ 46 and 59 of the Oklahoma Constitution. CERTIFIED QUESTION ANSWERED. ¶12 COLBERT, C.J. (by separate writing), REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, and GURICH, JJ., concur. FOOTNOTES 1 Title 25 O.S.2011 § 1350, in effect at the time of plaintiff's termination, provides: A. A cause of action for employment-based discrimination is hereby created and any common law remedies are hereby abolished. B. In order to have standing in a court of law to allege discrimination arising from an employment-related matter, in a cause of action against an employer for discrimination based on race, color, religion, sex, national origin, age, disability, genetic information with respect to the employee, or retaliation, an aggrieved party must, within one hundred eighty (180) days from the last date of alleged discrimination, file a charge of discrimination in employment with the Attorney General's Office of Civil Rights Enforcement or the Equal Employment Opportunity Commission alleging the basis of discrimination believed to have been perpetrated on the aggrieved party. Upon completion of any investigation, the Attorney General's Office of Civil Rights Enforcement may transmit the results of any administrative hearing and determination to the Equal Employment Opportunity Commission or issue the complaining party a Notice of a Right to Sue. C. Should a charge of discrimination be filed with the Attorney General's Office of Civil Rights Enforcement and not be resolved to the satisfaction of the charging party within one hundred eighty (180) days from the date of filing of such charge, the Attorney General's Office of Civil Rights Enforcement, upon request of any party shall issue a Notice of a Right to Sue, which must be first obtained in order to commence a civil action under this section. D. All civil actions brought pursuant to a Notice of a Right to Sue from the Attorney General's Office of Civil Rights Enforcement for redress against any person who is alleged to have discriminated against the charging party and against any person named as respondent in the charge shall be commenced in the district court of this state for the county in which the unlawful employment practice is alleged to have been committed. . . . . G. If it is determined in such action that the defendant or defendants in such action have discriminated against the charging party as charged in the petition, the court may enjoin the defendant or defendants from engaging in such unlawful employment practice charged in the petition, the court may enjoin respondent from engaging in such unlawful practice and order such affirmative action as reinstatement or hiring of employees. A prevailing aggrieved party shall also be entitled to backpay and an additional amount as liquidated damages. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the backpay otherwise allowable. If an individual was refused employment or advancement, was suspended and/or was discharged for legitimate reasons other than discrimination as provided by this act, then no order of the court shall require the hiring, reinstatement or promotion of that individual as an employee, nor shall it order payment of any backpay. H. In any action or proceeding under this section, the court may allow a prevailing plaintiff or defendant a reasonable attorney fee. 2 Oklahoma Constitution Article 5 § 46, provides in pertinent part: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; . . . . For limitation of civil or criminal actions; . . . . 3 Oklahoma Constitution Article 5 § 59, provides: Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted. 4 Title 25 O.S.2011 § 1101, provides: A. This act provides for exclusive remedies within the state of the policies for individuals alleging discrimination in employment on the basis of race, color, national origin, sex, religion, creed, age, disability or genetic information. B. This act shall be construed according to the fair import of its terms to further the general purposes stated in this section and the special purposes of the particular provision involved. 5 25 O.S.2011 § 1350, see note 6, supra. COLBERT, C.J., concurring, joined by Watt & Combs, JJ. ¶1 I concur in today's determination that section 1350 is not an unconstitutional special law. I write separately to address the meaning of an undefined term that appears in the section 1350 remedies provision of the Oklahoma Anti-Discrimination Act and to note that today's decision does not hold or imply that the Act is free from constitutional infirmity under other provisions of the Oklahoma and United States Constitutions when applied to claims of employment discrimination. ¶2 In a civil action in which employment discrimination has been determined, section 1350(G) provides for (1) reinstatement or hiring, (2) injunctive relief, (3) backpay less interim earnings, and (4) "an additional amount as liquidated damages."1 The term "liquidated damages" is not defined. However, the provisions of section 1350 appear to mirror to some extent the remedies provided for employment discrimination under federal law. ¶3 The remedies provisions of certain federal acts concerning employment provide liquidated damages as a punitive measure to deter violations. See, e.g.,Age Discrimination in Employment Act, 29 U.S.C. § 626(b); Equal Pay Act, 29 U.S.C. § 206(d); Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(1)(A)(iii). For example, under the Age Discrimination in Employment Act, the term "liquidated damages"denotes double the amount of backpay. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).2 Thus, a reasonable construction of section 1350(G) would require an award of double the award of backpay as liquidated damages. FOOTNOTES 1 In addition, section 1350(H) provides for prevailing party attorney fees. 2 Unlike the federal Age Discrimination in Employment Act, the Oklahoma Anti-Discrimination Act does not contain a "willful violation" requirement for an award of liquidated damages.

639effdc-78a4-45e8-8560-ab8a723bf835

Muratore v. Oklahoma ex rel. Dept. of Public Safety

oklahoma

Oklahoma Supreme Court

MURATORE v. STATE ex rel. DEPT. OF PUBLIC SAFETY2014 OK 3Case Number: 111586Decided: 01/28/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARK M. MURATORE, Plaintiff-Appellee,v.STATE OF OKLAHOMA, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I, ONAPPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATEOF OKLAHOMA, HONORABLE JAMES B. CROY ¶0 Mark Muratore, after being arrested for driving under the influence, submitted to a breathalyzer test. The breathalyzer test was administered using the Intoxilyzer 8000, and the test result reflected an alcohol concentration of .11. The Department of Public Safety revoked Mr. Muratore's driver's license for one year, and he appealed the revocation to the District Court of Oklahoma County on issues of the admissibility of the breathalyzer test. The trial court vacated the revocation of Mr. Muratore's driver's license, finding that the Board of Tests had no rules in place governing maintenance procedures for the Intoxilyzer 8000 and that the manufacturer's certificate of calibration for this particular Intoxliyzer 8000 and the supplier's certificate of analysis for the gas canister used as a reference method for the Intoxilyzer 8000 were inadmissible hearsay. The Court of Civil Appeals reversed. We granted certiorari and find that the trial court did not abuse its discretion in refusing to admit the manufacturer's certificate of calibration and the supplier's certificate of analysis. We also find that the Department of Public Safety did not meet its threshold burden of proving all the facts necessary to sustain the revocation of Mr. Muratore's license, and the record supports the trial court's decision to vacate the revocation of Mr. Muratore's driver's license. COCA OPINION VACATED; TRIAL COURT'S ORDER VACATING THE REVOCATION OF PLAINTIFF-APPELLEE'S DRIVER'S LICENSEAFFIRMED Stephen G. Fabian, Jr., Oklahoma City, Oklahoma, Attorney for Plaintiff-AppelleeJoanne Horn, Assistant General Counsel, Department of Public Safety, Oklahoma City, Oklahoma, Attorney for Defendant-Appellant GURICH, J. Facts and Procedural History ¶1 On April 21, 2012, at approximately 11:30 p.m., Plaintiff-Appellee Mark Muratore was arrested by Officer Tim Harwell of the Edmond Police Department for operation of a motor vehicle while under the influence of an intoxicating substance. The arresting officer read him the Oklahoma Implied Consent advisory and transported Muratore to the booking area of the Edmond city jail where he voluntarily submitted to a breathalyzer test. The breathalyzer test was administered using the Intoxilyzer 8000, a device approved by the Board of Tests for Alcohol and Drug Influence. At 11:51 p.m. the officer began the fifteen-minute deprivation period.1 Once the fifteen-minute deprivation period was over, the officer took the first breath sample at 12:08 a.m. on April 22, 2012, with a test result of .11g/210L.2 The second sample was taken at 12:11 a.m. with a test result of .11g/210L.3 Using the Officers' Affidavit and Notice of Revocation/Disqualification form provided by the Department of Public Safety, the officer prepared and served the Affidavit revoking Mr. Muratore's driver's license. On April 23, 2012, Mr. Muratore requested an administrative hearing with DPS concerning the revocation of his driver's license. An administrative hearing was held on November 7, 2012, and the hearing officer sustained the revocation. Mr. Muratore appealed to the District Court of Oklahoma County. ¶2 At trial, the parties stipulated to the following facts: 1) the officer had reasonable grounds to stop Mr. Muratore; 2) Mr. Muratore was operating a motor vehicle on the roadways of Oklahoma; 3) the officer arrested Mr. Muratore; 4) the officer read the implied consent advisory to Mr. Muratore; and 5) Mr. Muratore agreed to take the breathalyzer test. The only witness, Officer Harwell, testified that although he was trained by the Board of Tests to operate the Intoxilyzer 8000 and his permit for administering the test was current at the time of the arrest, the affidavit he signed contained several errors, including the date of arrest,4 the date the affidavit was served, and the date the officer signed the affidavit.5 ¶3 The trial court admitted a number of exhibits at trial,6 including the arresting officer's affidavit, but refused to admit the manufacturer's Certificate of Calibration for the Intoxilyzer 8000, serial number 80-003810, dated March 26, 2009, and the ILMO Specialty Gases Certificate of Analysis for the gas canister, lot number 03112080AI, dated February 10, 2012. The trial court found both documents were hearsay and did not fall under the public records exception to the hearsay doctrine found in 12 O.S. 2011 § 2803(8) because they were not created by the Board of Tests. After hearing argument from both sides, the trial court also found the Board of Tests had no rules in place governing maintenance procedures for the Intoxilyzer 8000. The trial court reversed the revocation of Mr. Muratore's driver's license. ¶4 DPS appealed, and COCA reversed, disagreeing with the trial court's interpretation of the facts: We here note that, in support of his argument to affirm, Muratore argues the breathalyzer was obviously malfunctioning, and the trial court so properly determined, given the discrepancy between the date of arrest entered by the officer ("4/22/2012) and the "date of test" entered automatically by the breath testing device ("04/21/2012"). However, from our examination of the Officer's Affidavit and Notice of Revocation, and considering the admitted date of the arrest on April 21, and the beginning of the deprivation period just before midnight on April 21, it seems more likely the device recorded the correct time (11:53 p.m.) when the deprivation period began on April 21, 2012, as the correct starting "date of test" ("04/21/2012"), and some fourteen minutes later, at "00:07" (12:07 a.m.) on April 22, 2012, recorded the result of the first of three "air blank" reference tests before recording the analysis of Muratore's first breath sample at "00:08" (12:08 a.m.) on April 22, 2012. Mark Muratore v. State, ex rel. Dep't of Pub. Safety, Case No. 111,586, at 16 n.1 (May 10, 2013) (published) (emphasis added). Mr. Muratore petitioned this Court for certiorari review, and we granted certiorari on November 25, 2013. Standard of Review ¶5 The District Court's review of a driver's license revocation is conducted de novo, "with the 'trial de novo' being a trial of the entire case anew, both on the law and on the facts." Appeal of Dungan, 1984 OK 21, ¶ 7, 681 P.2d 750, 752; see also 47 O.S. 2011 § 6-211(I). To revoke a driver's license based upon a breath test result and a sworn report from a law enforcement officer, DPS bears the burden in the district court of proving by a preponderance of the evidence "all facts necessary to sustain the revocation, including the operation/actual physical control of a motor vehicle while intoxicated, a valid arrest, proper advice of rights and consequences, as well as consent to and performance of a valid test on a properly maintained testing device." Derrick v. State ex rel. Dep't of Pub. Safety, 2007 OK CIV APP 56, ¶ 11, 164 P.3d 250, 253 (citing 47 O.S. § 754(F)(1); 47 O.S. § 6-211; Smith v. State, ex rel. Dep't of Pub. Safety, 1984 OK 16, ¶ 6-8, 680 P.2d 365, 368; Westerman v. State, 1974 OK CR 151, ¶ 11, 525 P.2d 1359, 1361). ¶6 "Revocation appeal proceedings in the district court are exempt from the provisions of the Oklahoma Pleading and Discovery codes, but they are not exempt from the Oklahoma Evidence Code." Hedrick v. The Comm'r of the Dep't of Pub. Safety, 2013 OK 98, ____P.3d____. The trial court's determination to admit or not admit evidence under one of the hearsay exceptions will not be disturbed absent an abuse of discretion. Kerr v. Clary, 2001 OK 90, ¶ 15, 37 P.3d 841, 844. In reviewing the revocation of a driver's license on appeal, this Court will not reverse the trial court's judgment "if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support [the trial court's] findings." Smith, 1984 OK 16, ¶ 7, 680 P.2d 365, 368. see also Hollis v. State ex rel. Dep't of Pub. Safety, 2008 OK 31, n.4, 183 P.3d 996, 999 n.4 ("Unless the lower court's rulings are found to be erroneous as a matter of law, or unsupported by evidentiary foundation, the appellate courts will not disturb the findings made.") (emphasis added). Analysis The Trial Court Did Not Abuse Its Discretion in Refusing to Admit the Manufacturer's Certificate of Calibration and the Supplier's Certificate of Analysis ¶7 At trial, DPS attempted to offer into evidence a Certificate of Calibration for the Intoxilyzer 8000, serial number 80-003810, from the manufacturer of the device, CMI, Inc. The certificate claims to certify that the calibration of the device was tested on March 26, 2009, and found to be in compliance with the National Safety Administration Standard for Devices to Measure Breath Alcohol. DPS also attempted to offer into evidence a Certificate of Analysis from ILMO Specialty Gases, a supplier of the gas canisters used as a reference method for the Intoxilyzer 8000. The certificate claims to certify that on February 10, 2012, the gas canister, lot number 03112080AI, contained a ratio of ethanol and nitrogen appropriate for use with breath alcohol testing instruments. Counsel for Mr. Muratore timely objected to the admission of both certificates as hearsay.7 ¶8 It is undisputed that both certificates are hearsay because they were offered to prove the truth of the matter asserted--that both devices were in proper working order.8 But DPS argued both certificates were admissible under 12 O.S. 2011 § 2803(8), the public records hearsay exception, which excludes from the hearsay rule: [A] record of a public office or agency setting forth its regularly conducted and regularly recorded activities or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual finding resulting from an investigation made pursuant to authority granted by law. ¶9 The Certificate of Calibration for the Intoxilyzer 8000 was prepared by CMI, Inc., the manufacturer of the Intoxilyzer 8000 and signed by one of its technicians. The Certificate of Analysis for the gas canister was prepared by ILMO Specialty Gases, a supplier of gas canisters, and signed by a specialty gas lab technician. As the trial court correctly noted, neither of the certificates offered by DPS was prepared by a member of the Board of Tests or any other public officer of this state, so neither is a public record for purposes of the public records exception to the hearsay doctrine. DPS argued the certificates were public records because they were regularly kept records of the Board of Tests, but this argument misses the point. The "[j]ustification for the exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record."9 Because these certificates were created by third parties--CMI, Inc., and ILMO Specialty Gases--and not a public official, the trial court correctly concluded that the public records exception to the hearsay doctrine did not apply. ¶10 The certificates are also not admissible in this case under the business records exception to the hearsay doctrine.10 Section 2803(6) excludes from the hearsay rule: A record of acts, events, conditions, opinions or diagnosis, made at or near the time by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of Section 2902 of this title, or with a statute providing for certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit. 12 O.S. 2011 § 2803(6). ¶11 Section 2803(6) requires a proper foundation for the admission of documents pursuant to this exception. A "custodian or other qualified witness" must testify that the record was made "at or near the time by or from information transmitted by a person with knowledge," the record was "kept in the course of a regularly conducted business activity," it was "the regular practice of that business activity to make the record," and no "source of information or the method or circumstances of preparation indicate lack of trustworthiness." 12 O.S. 2011 § 2803(6). ¶12 Although these certificates may have been "kept in the course of a regularly conducted business activity," no custodian or other qualified witness testified as to whether the certificates were made at or near the time of the events memorialized in the certificates or whether it was the regular practice of either CMI, Inc. or ILMO Specialty Gases to make certificates of these types. The "[r]eliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation."11 DPS presented no evidence indicating the reliability of these certificates as required by § 2803(6).12 ¶13 Using a novel theory, COCA concluded that the certificates "kept by the Board of Tests as part of its regularly kept records, constitute non-testimonial evidence. As such, the certificates are admissible and admission of those certificates does not violate the confrontation clause of the Sixth Amendment."13 Neither party raised the Confrontation Clause at the hearing with the trial court, nor did they brief the issue. ¶14 The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."14 The Oklahoma Court of Criminal Appeals has stated that "under the Confrontation Clause, testimonial hearsay statements may be admitted against the accused in a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant." Taylor, 2011 OK CR 8, ¶ 32, 248 P.3d at 373 (citing Crawford, 541 U.S. at 68) (emphasis added). In determining whether a defendant's Sixth Amendment right to confrontation has been violated, the critical question is whether the statement is "testimonial" under the Crawford Doctrine.15 ¶15 The Confrontation Clause only applies in criminal cases. The case before us is an administrative appeal of a revocation of a driver's license, and the Confrontation Clause cases relied on by COCA are not dispositive of whether the documents DPS sought to introduce are admissible under the hearsay doctrine. Although the Confrontation Clause and the hearsay doctrine sometimes coincide, the doctrines operate independently of one another.16 As the case before us demonstrates, a statement considered "nontestimonial" and admissible for purposes of the Confrontation Clause is not necessarily admissible under the hearsay doctrine, as COCA incorrectly concluded. See, e.g., State v. Pugh, 225 P.3d 892, 831-32 (Wash. 2009) ("Nontestimonial hearsay, on the other hand, is admissible under the Sixth Amendment subject only to the rules of evidence.").17 Although some courts have determined these types of certificates are nontestimonial evidence and admissible in criminal cases under the Confrontation Clause, the certificates are not admissible in this case under the public records exception to the hearsay doctrine because they were not prepared by a public official and are not admissible under the business records exception to the hearsay doctrine because DPS failed to lay a proper foundation for the admission of the certificates as required under that exception. ¶16 Regardless of the hearsay exceptions, the certificates were properly refused because they weren't relevant to whether the device was working at the time of Mr. Muratore's arrest. see 12 O.S. §§ 2401-2402. Calibration of this particular Intoxilyzer 8000 was tested and found to be in compliance with the National Safety Administration Standard for Devices to Measure Breath Alcohol on March 26, 2009. But that doesn't prove the device continued to work properly at the time of Mr. Muratore's arrest more than three years later. Similarly, an analysis of the gas canister when it left the supplier in March of 2012, is not conclusive proof that the canister contained the correct ratio of ethanol and nitrogen at the time of Mr. Muratore's arrest a month later. The trial court did not abuse its discretion in refusing to admit both certificates. Evidence in the Record Supports the Trial Court's Decision to Vacate the Revocation of Mr. Muratore's Driver's License ¶17 On cross-examination, counsel for Mr. Muratore questioned Officer Harwell about inaccuracies contained in the affidavit that revoked Mr. Muratore's driver's license. The officer testified he manually put in the information at the top of the affidavit, including the arrest date of April 22, 2012,18 but that the arrest date on the affidavit was incorrect because Mr. Muratore was actually arrested on April 21, 2012.19 The officer also testified that the Intoxilyzer 8000 automatically input the signature date, which was April 21, 2012.20 He testified he did not sign the affidavit on the 21st as the affidavit indicated and that date was error.21 The officer testified the date the affidavit was served showed April 21, 2012, but that he did not serve Mr. Muratore on the 21st as the affidavit indicated and that date was also error.22 The exchange on cross-examination concluded as follows: Q: So we can feel comfortable that this affidavit is accurate? A: Yes, sir. Q: Well, we know it's inaccurate, don't we? A: The dates, yes sir. Q: We can feel comfortable in that respect, can't we? A: Yes, sir.23 The trial court found these inaccuracies troubling: How does the machine put a date earlier for the completion of the test rather than the day that he says the test should have been completed? See, it says here the date of arrest he put in, this is the testimony I heard, 4/22. And it was really 4/21, just before midnight. . . . But the machine - well, actually the machine has it right there . . . says we started the deprivation period at twenty-three fifty-one on 4/21. And it was finished apparently at zero zero one three of 4/21, which was the day before because that's when it generated that he served notice and he signed it. I have no explanation for that. He had no explanation. He said, "Well now, part of this was my error but the other part wasn't," the other part was auto-populated by the machine. That's something that can't be explained.24 ¶18 The trial court was also concerned that although an administrative rule requires the Board of Tests to implement maintenance procedures for the Intoxilyzer 8000, at the time of Mr. Muratore's trial, the Board of Tests hadn't actually implemented any rules governing the maintenance of these particular machines. Section 30-1-3(j) of Title 40 of the Administrative Code provides: (j) Maintenance. Maintenance shall be performed on the CMI 8000 Intoxilyzer, equipped with nitrogen-ethanol dry gas mixture, at such time as the regulator of the nitrogen-ethanol pressurized dry gas canister fails to provide a gas sample for analysis or by the manufacturers stated expiration date, whichever occurs first. Such maintenance shall be performed by Board personnel, according to the procedure(s) prescribed by the State Director of Tests for Alcohol and Drug Influence. Okla. Admin. Code § 40:30-1-3 (emphasis added). ¶19 The following exchange took place between counsel for DPS and the trial court: [The Court]: But let's cut right to the chase, are there rules and regulations or actions by the Department governing the maintenance of these machines -- the "Department" meaning the Board of Tests - either acting through its director or acting as the Board itself? Does the Department have any knowledge of rules, regulations, and procedures adopted by the Board or promulgated by the Board or adopted by the then Department head? Ms. Horn: I know that the bench check procedure has been adopted over there, they have been using it for five years. Now, whether Blackburne approved it or whether - . . . . The Court: But the question is just much more yes or no than that. Are there rules, procedures adopted by the Board, either sitting as a board or through its director, that govern the maintenance and the bench check procedures of the machine, the 8000? Ms. Horn: Well, I have provided the Court what I've got - The Court: [Y]ou have previously told me in other cases "No, there are not." You actually called the Board and they said, "No, he didn't really do that," "he" being the director at the time. I'll tell you we have been offered none.25 ¶20 Without any rules governing the maintenance of the Intoxilyzer 8000, there is no way to verify the bench check procedure referred to by counsel for DPS is sufficient to ensure the proper maintenance of these machines or that the person who performed the bench check was in fact qualified to perform maintenance on an Intoxilyzer 8000. Additionally, according to Exhibit 6, an affirmation of a resolution by the Board of Tests dated June 12, 2008, the pressurized gas cylinder used as a reference method for the Intoxilyzer 8000 must contain "a known breath-alcohol equivalent ratio of nitrogen and ethanol gas."26 But without any rules governing the maintenance of the Intoxilyzer 8000, there is no way to verify, through the bench check procedure or otherwise, whether the attached pressurized gas cylinder contained the correct ratio of nitrogen to ethanol.27 ¶21 "[O]ne of the main purposes of the Board of Chemical Tests for Alcoholic Influence is to promulgate rules and regulations on operation and maintenance of breathalyzer equipment in order to assure the accuracy of the tests run on this equipment. . . . [F]ailure to comply with all the rules invalidates tests given on the equipment." Westerman, 1974 OK CR 151, ¶ 10, 525 P.2d at 1361 (emphasis added). In driver's license revocation proceedings before the District Court, DPS bears the burden of proving, among other things, that a valid breathalyzer test was performed on a properly maintained testing device. DPS can't carry this burden when the Board of Tests has not implemented any rules governing the maintenance of the Intoxilyzer 8000. Conclusion ¶22 The standard of review in cases of this nature requires the appellate courts to give deference to the trial court's findings and affirm if there is any evidence or any reasonable inference to be drawn from that evidence, which tends to support the trial court's findings. The inaccuracies in the officer's affidavit coupled with the lack of prescribed maintenance procedures for the Intoxilyzer 8000 is more than enough evidence to affirm the trial court's findings in this case, and we find that COCA improperly substituted its judgment for that of the trial court's in this case. DPS did not meet its threshold burden of proving all the facts necessary to sustain the revocation of Mr. Muratore's license, and the trial court's decision to vacate the revocation of Mr. Muratore's Driver's License is affirmed. Today's decision shall apply prospectively, controlling only those administrative proceedings currently pending before DPS and only those administrative appeals currently pending in the district courts or filed in the district courts after the issuance of this opinion. Today's opinion shall have no effect on revocation proceedings that have become final judgments.28 ¶23 COLBERT, C.J., REIF, V.C.J., KAUGER, EDMONDSON, COMBS and GURICH, JJ. - concur. ¶24 WATT, WINCHESTER and TAYLOR, JJ. - dissent. FOOTNOTES 1 Oklahoma Administrative Code § 40:30-1-3(h) provides: (h) Analysis. Each such analysis shall include the following steps: (1) Observation of the subject whose breath is to be tested sufficient to determine that, for a period of at least fifteen (15) minutes prior to the collection of the first breath specimen, and continuing through the second breath specimen, the subject shall not have ingested alcohol in any form or any other substance, vomited, or smoked. Such observation shall be carried out by the breath-alcohol analysis Operator or Specialist or by any other qualified person. (2) Analysis for alcohol of two (2) or more specimens of breath consisting substantially of expired alveolar air. (3) A blank analysis preceding analysis of each breath specimen. (4) Analysis for alcohol of at least one suitable reference or control sample of a known alcohol concentration, such as air equilibrated at a known temperature with a reference solution of known ethyl alcohol content in an alcoholic breath simulator device approved by the Board or a Board approved nitrogen-ethanol dry gas reference method. The results of each such control analysis must coincide with the corresponding vapor-alcohol concentration target value within plus or minus one-hundredths gram per two hundred and ten liters (± 0.01g/210L). (5) The operator performing each such analysis shall properly complete a Breath-Alcohol Analysis Record and Report form prescribed and designated by the State Director of Tests for Alcohol and Drug Influence, and shall promptly forward one (1) copy thereof to the Oklahoma Department of Public Safety, and to other agencies and persons listed on the form. Okla. Admin. Code § 40:30-1-3(h). 2 Transcript of Proceedings, Def. Ex. 3. 3 Id. 4 On direct examination the officer testified: Q: And what was the arrest date; what was the arrest date?A: The arrest date would have been the 21st.Q: So that's an error on the affidavit?A: Yes, ma'am. Transcript of Proceedings at 24. 5 The exchange on cross-examination was as follows: Q: You said you served him on the 21st on this affidavit, that you swore was the truth, the whole truth, and nothing but the truth, you said here that you served him on the 21st?A: Yes, sir.Q: Now you're telling us that was an error?A: It was an error.Q: Okay. In the next section, section four, you swore under oath and it says on the 21st that this information is true and correct?A: Yes, sir, I did sign that.Q: I take it you did it on that date; correct?A: On which date?Q: Well, the 21st. That's what you have on your affidavit.A: That I served him?Q: That's what you said?A: Yes, sir. On the Officer's Affidavit, it does state that. That is an error.Q: Well, did you make an error in two places?A: Yes, sir. Transcript of Proceedings at 24-25. 6 At trial, the following exhibits were admitted into evidence: 1) the DPS Order issued November 9, 2012, sustaining the revocation of Mr. Muratore's driver's license; 2) Mr. Muratore's driving index; 3) the Officer's Affidavit and Notice of Revocation; 4) a copy of the Board of Tests Administrative Rules, 40:30-1-3; 5) a copy of the affirmation of a resolution as made at a meeting of the Board of Tests to approve the Intoxilyzer 8000; 6) a copy of the affirmation of a resolution by the Board of Tests that the pressurized gas cylinders containing a known breath alcohol equivalent ration of nitrogen and gas are approved for using in breath alcohol simulators; 7) Action 08-05 of the Board of Tests approving the mouthpieces to be used in breath-alcohol analysis; 8) Action 09-02 of the Board of Tests stating the operating procedure for breath-alcohol analysis with the Intoxilyzer 8000 and external printer; 9) Certificate of Calibration and Operation for Intoxilyzer 8000, serial number 80-003810, prepared by the Board of Tests; 10) Bench check for Intoxilyzer 8000, serial number 80-003810, using an ILMO cylinder with lot number of 031120801AI. DPS also offered Exhibit 11 Certificate of Calibration from CMI, Exhibit 12 ILMO Specialty Gasses Certificate of Analysis, Exhibit 13 Aid to Court and Exhibit 14 Implied Consent Test Request (part of stipulation). The trial court denied their admission but made them part of the record as offers of proof. Transcript of Proceedings at 4-6; 15-17. 7 Transcript of Proceedings at 15; 38-39. see Weathers v. Fulgenzi, 1994 OK 119, ¶ 23, 884 P.2d 538, 543 (finding that an objection to admission of certain evidence must appear in the record for the issue to be preserved for appellate review). 8 12 O.S. 2011 § 2801(A)(3). 9 Fed. R. Evid. 803(8) advisory committee's note (emphasis added); see also Hadley v. Ross, 1944 OK 366, ¶ 18, 154 P.2d 939, 941-42 ("The exception to the hearsay rule in this regard is justified because of convenience and necessity, in view of the fact that it is well recognized that officials perform their duties under oath without prejudice and bias, impelled only by official responsibility and duty. It must also be presumed that their duties are performed efficiently and accurately; their records are therefore considered trustworthy.") (emphasis added). 10 Although the trial court did not rule on whether the certificates were admissible under the business records exception to the hearsay doctrine, counsel for DPS argued: The records of a public agency setting forth regularly conducted and recorded activities are excluded from hearsay. The records made in the course of regularly conducted business activity are exempt from the hearsay rule. Those are both under Title 12, Oklahoma Statutes 2803, respectively sections eight and six. Transcript of Proceedings at 33 (emphasis added). 11 Fed. R. Evid. 803(6) advisory committee's note. 12 DPS argued the certificates were reliable because they were certified copies fixed with the state seal. Under § 2803(6), certification that complies with 12 O.S. 2011 §§ 2902(11) & (12) can be used to lay a proper foundation for the admission of documents pursuant to this exception. But certification under 12 O.S. 2011 §§ 2902(11) & (12) does not mention documents fixed with the state seal. Rather subsections (11) and (12) require that "the document is accompanied by a written declaration under oath of the custodian of the record, or other qualified individual that the record was made, at or near the time of the occurrence of the matters set forth by or from information transmitted by a person having knowledge of those matters; was kept in the course of the regularly conducted business activity; and was made pursuant to the regularly conducted activity." 12 O.S. 2011 § 2902(11) & (12) (emphasis added). The certificates in this case were not accompanied by a written declaration under oath from the custodian of the records at either CMI Inc. or ILMO Specialty Gases. 13 Mark Muratore v. State, ex rel. Dep't of Pub. Safety, Case No. 111,586, at 14 (May 10, 2013) (published). 14 U.S. Const. amend. VI (emphasis added). The "right to confrontation [is] guaranteed by the Sixth and Fourteenth Amendments and Article 2, section 20 of the Oklahoma Constitution." Taylor v. State, 2011 OK CR 8, ¶ 32, 248 P.3d 362, 373. 15 Taylor, 2011 OK CR 8, ¶ 32, 248 P.3d at 373 ("[T]he proper focus is whether the challenged statement is 'testimony' against the defendant, triggering the constitutional requirement of an opportunity for cross-examination."); U.S. v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005) ("The lynchpin of the Crawford decision thus is its distinction between testimonial and nontestimonial hearsay; simply put, the rule announced in Crawford applies only to the former category of statements."). 16 Matter of W.D., 1985 OK 65, ¶ 13, 709 P.2d 1037, 1042 ("While it may readily be conceded that hearsay rules and the confrontation clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exception as they existed at common law."); Seely v. State, 282 S.W.3d 778, 782 (Ark. 2008) ("In order for hearsay statements to be admissible against a defendant at a criminal trial, two separate requirements must be met. First, an exception to the general rule prohibiting hearsay must be demonstrated. Second, the admission of the hearsay cannot violate the defendant's Sixth Amendment right "to be confronted with the witnesses against him.") (citations omitted); Vigil v. State, 98 P.3d 172, 177 (Wyo. 2004) ("While the Confrontation Clause and hearsay may overlap, they are distinct concepts and objections grounded upon these principles incorporate separate analyses.") (citations omitted). 17 See also Davis v. Washington, 547 U.S. 813, 821 (2006) ("It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause."); Crawford, 541 U.S. at 68 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether."). 18 Transcript of Proceedings at 26. 19 Transcript of Proceedings at 24. 20 Id. at 31. 21 Id. at 25. 22 Id. 23 Id. at 26. 24 Id. at 41-42. 25 Id. at 42-43 (emphasis added). 26 Transcript of Proceedings, Ex. 6. 27 In stark contrast to the complete lack of rules for maintenance of the Intoxilyzer 8000, the prescribed maintenance procedures for the Intoxilyzer 5000 require: (e) Maintenance. Maintenance shall be performed as follows on the above listed equipment at least once during each thirty (30) day period and not later than thirty (30) days since the last prior such maintenance, or after the testing of twenty five (25) subjects, whichever occurs first, by a person possessing a valid Breath Alcohol Analysis (Specialist) permit issued by the Board: (1) A thorough inspection of the equipment for cleanliness and determination that it is in proper operating condition shall be performed. (2) The reference ethyl alcohol solution in the alcoholic breath simulator device shall be replaced with new solution and one (1) or more verification analyses performed with the new solution. Each verification analysis shall be performed in accordance with the Operating Procedure(s) prescribed by the State Director of Tests for Alcohol and Drug Influence. The result of each such verification analysis must coincide with the corresponding vapor-alcohol concentration target value within plus or minus one-hundredths gram per two hundred and ten liters (± 0.01g/210 L). (3) The administrative maintenance performed, shall include; results of said verification analyses, date of inspection, and a record of the inspection will be documented on the log of tests and maintenance record retained by the breath analysis instrument in digital form as prescribed and designated by the State Director of Tests for Alcohol and Drug Influence. Okla. Admin. Code § 40:30-1-3(e). Although not binding on this Court, in 2007 COCA held that the maintenance log for the Intoxilyzer 5000 that was offered into evidence was admissible under the public records exception to the hearsay doctrine because a state officer performed certain maintenance on the Intoxilyzer 5000 pursuant to his duties as a public official and recorded this fact in a record required to be kept by law. Clark v. State ex rel. Department of Public Safety, 2007 OK CIV APP 12, 153 P.3d 77. However, in the case before us, the machine at issue is an Intoxilyzer 8000, and DPS did not seek to admit a maintenance log for this particular Intoxilyzer 8000. 28 see Cornett v. Carr, 2013 OK 30, ¶ 14, 302 P.3d 769, 773 (citing Depuy v. Hoeme, 1989 OK 42, ¶ 10, 775 P.2d 1339, 1343-1344) (explaining that a judgment stands as final when the time to appeal has expired, is impervious to reconsideration, and is binding on the parties).

2d59b9d2-d541-4252-a54e-cc14d76779e9

In re: Initiative Petition No. 397, State Question No. 767

oklahoma

Oklahoma Supreme Court

IN RE: INITIATIVE PETITION NO. 397, STATE QUESTION NO. 7672014 OK 23Case Number: 112264Decided: 04/01/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE: INITIATIVE PETITION NO. 397, STATE QUESTION NO. 767, TAKE SHELTER OKLAHOMA and KRISTI CONATZER, Petitioners, v. STATE OF OKLAHOMA, ex rel., ATTORNEY GENERAL, E. Scott PRUITT Respondent. APPEAL OF ATTORNEY GENERAL'S BALLOT TITLE ¶0 Proponents of an initiative petition brought an appeal in this Court challenging the ballot title prepared by the Oklahoma Attorney General for the proposed initiative. We hold that: 1. A proponent of an initiative petition must file or submit a copy of the initiative petition and a copy of the ballot title to the Attorney General when the proponent files the initiative petition and ballot title with the Secretary of State, 34 O.S. § 9 (A) & (B); 2. The Attorney General must file a response to a ballot title within five business days from the date the ballot title is filed with the Secretary of State, 34 O.S. § 9 (D); 3. The Attorney General's § 9(D) response to a ballot title is statutorily effective although the Attorney General's response was filed two days late; 4. A proponent of an initiative who challenges a ballot title prepared by the Attorney General has the burden to show that the Attorney General's ballot title is legally incorrect, or is not impartial, or fails to accurately reflect the effects of the proposed initiative; 5. The Attorney General's ballot title challenged in this proceeding is legally correct, impartial, and accurately reflects the effects of the proposed initiative; 6. When a ballot title appeal has been made, a proponent's ninety-day period of time to collect signatures commences when the ballot title appeal is final. BALLOT TITLE PREPARED BY THE OKLAHOMA ATTORNEY GENERAL DECLARED TO BE LEGALLY SUFFICIENT FOR THE PROPOSED INITIATIVE David R. Slane and Richard Morrissette, Oklahoma City, for Co-Petitioners/Proponents, Take Shelter Oklahoma, Kristi Conatzer Neal Leader, Senior Assistant Attorney General and Charles S. Rogers, Senior Assistant Attorney General, Oklahoma City, for Respondent State of Oklahoma, ex rel. Attorney General E. Scott Pruitt EDMONDSON, J. ¶1 On Sept. 18, 2013, Initiative Petition No. 397, State Question 767 was filed with Secretary of State. The Initiative Petition proposes amendments to the State Constitution with an ultimate primary purpose of constructing storm shelters for schools. Proponents also filed with the Secretary of State a proposed ballot title for their proposed Initiative. ¶ 2 The Oklahoma Attorney General disagreed with Proponents' ballot title and then prepared and filed with the Secretary of State a new ballot title for the Initiative. Proponents disagreed with the ballot title prepared by the Attorney General and sought relief from this Court by filing an appeal from the new ballot title. Proponents' application for an order to disqualify the Attorney General from participation in this proceeding was withdrawn by counsel for Proponents during oral argument before the Court en banc and need not be addressed. I. Attorney General's Jurisdiction to File a New Ballot Title Proponents claim that the Attorney General lost jurisdiction to file a new ballot title because the Attorney General's objection to Proponents' ballot title was untimely filed with the Secretary of State. ¶3 On Wednesday, September 18, 2013, Initiative Petition No. 397, State Question 767, was filed with Secretary of State by Proponents. On Thursday, September 19, 2013, the Secretary of State sent a notice by Interagency Mail to the Attorney General that an initiative petition had been filed and submitted a copy of the ballot title to the Attorney General. The Attorney General states that the notice from the Secretary of State was received on Friday, September 20, 2013. On Friday September 27, 2013, the Attorney General filed with the Secretary of State a notice that the ballot title did not comply with applicable laws, and that pursuant to 34 O.S.2011 § 9(D) he would prepare and supply to the Secretary of State a ballot title within ten days. On October 11, 2013, the Attorney General filed a ballot title with the Secretary of State. ¶4 Proponents argue that the Attorney General has five business days from the date the ballot title is filed with the Secretary of State to file an objection to a ballot title. They submit that they filed the ballot title on Wednesday September, 18, 2013, and that the Attorney General's objection filed on Friday, September 27, 2013, was beyond the five-day limit. They contend that the Attorney General lost jurisdiction to file an objection when the five-day period expired. ¶5 The Attorney General argues that the five-day period for him to file an objection to a ballot title commences when a ballot title is filed with the Attorney General by a proponent. The Attorney General submits that the Proponent failed to file the ballot title with the Attorney General and that this five-day period never commenced. Proponents argue that they are not required to file copies of a proposed initiative and ballot title with the Attorney General. The Attorney General also argues that his objection to the ballot title was filed with the Secretary of State within five business days from the date he received copies of the initiative petition and ballot title from the Secretary of State via interagency mail. ¶ 6 The parties have different views on the meaning of language in 34 O.S.2011 § 9 (A), (B), & (D). The relevant language states that: A. When a referendum is ordered by petition of the people against any measure passed by the Legislature or when any measure is proposed by initiative petition, whether as an amendment to the Constitution or as a statute, it shall be the duty of the parties submitting the measure to prepare and file one copy of the measure with the Secretary of State and one copy with the Attorney General. 34 O.S.2011 § 9(A) (emphasis added). B. The parties submitting the measure shall also submit a suggested ballot title which shall be filed on a separate sheet of paper and shall not be deemed part of the petition. . . . 34 O.S.2011 § 9(B) (emphasis added). D. The following procedures shall apply to ballot titles of referendums ordered by a petition of the people or any measure proposed by an initiative petition: 1. After the filing of the petition and prior to the gathering of signatures thereon, the Secretary of State shall submit the proposed ballot title to the Attorney General for review as to legal correctness. Within five (5) business days after the filing of the measure and ballot title, the Attorney General shall, in writing, notify the Secretary of State whether or not the proposed ballot title complies with applicable laws. . . . 34 O.S.2001 § 9 (D) (1) (emphasis added). ¶7 Section 9(A) states that the "parties submitting the measure" must prepare and file one copy of the "measure" with the Secretary of State and one copy with the Attorney General. In § 9(A) "submitting the measure" identifies who is required to file a copy of the measure with both the Attorney General and the Secretary of State. ¶8 Section 9(B) states that the parties "submitting the measure" "shall also submit a suggested ballot title . . . ." Section 9(B) does not expressly identify the Secretary of State, Attorney General or both are to receive the submitted ballot title. However, a party's duty to submit the ballot title is expressly stated to be performed with the act of submitting the proposed measure to the Attorney General and Secretary of State. Section 9(B) plainly states that the parties "submitting the measure" shall also submit a suggested ballot title. ¶9 The primary goal in reviewing a statute is to ascertain legislative intent, if possible, from a reading of the statutory language in its plain and ordinary meaning.1 This is so because the plain words of a statute are deemed to express legislative authorial intent in the absence of any ambiguity or conflict in language.2 The test for ambiguity in a statute is whether the statutory language is susceptible of more than one reasonable interpretation.3 Generally, and consistent with a court's construction of alleged ambiguity in a contract,4 a judicial determination of the presence of more than one reasonable construction of the statutory language, i.e., ambiguity, presents a question of law5 because the determination that a statutory construction is reasonable is based initially on a plain meaning of the words in the statute where no fact is disputed.6 The plain language of § 9 (A) & (B) states that the ballot title is submitted with the measure, and the measure is submitted to both the Attorney General and the Secretary of State. We hold that Proponents were required to file or submit a copy of initiative petition and a copy of the ballot title to the Attorney General when they filed the initiative petition and ballot title with the Secretary of State. ¶10 The next argument made by the parties is whether the five business days for the Attorney General to object to a ballot title commence on (1) the day a proponent files the initiative petition and ballot title with the Secretary of State, or (2) the date the initiative petition and ballot title are filed with the Attorney General, or (3) the date the Attorney General receives notice from the Secretary of State that an initiative petition and ballot title have been filed. ¶11 The Attorney General's argument is that 34 O.S. § 9 should be construed to mean that the filed copy of the ballot title which it reviews for legal correctness is the one filed with the Attorney General, and that the filing of this copy with the Attorney General is also the event which commences the Attorney's General's five-day period to file an objection to the ballot title. We reject that construction of 34 O.S. § 9, as contrary to the plain language of that statute. ¶12 The statutory language providing the Attorney General five business days to object to a ballot title does not occur in isolation from the rest of the statute in which it appears. The five-day period occurs not in paragraphs "A" or "B" but in paragraph "C" and immediately following a sentence stating that: "After the filing of the petition and prior to the gathering of signatures thereon, the Secretary of State shall submit the proposed ballot title to the Attorney General for review as to legal correctness." This sentence refers to the Secretary of State performing the act of submitting a copy of the ballot title to the Attorney General "for review as to legal correctness." The plain language of the statute states that the reason the Secretary of State submits a copy of the ballot title to the Attorney General is for the Attorney General to determine the legal correctness of the ballot title. Because of this duty on the Secretary of State to submit a copy of the ballot title to the Attorney General for review as to legal correctness, we conclude that the copy that the Secretary of State submits to the Attorney General is a copy of the ballot title filed of record with the Secretary of State. ¶13 Further, the language "[w]ithin five (5) business days after the filing of the measure and ballot title the Attorney General shall, in writing, notify the Secretary of State whether or not the proposed ballot title complies with applicable laws" occurs immediately after language stating that the Secretary of State has a duty to provide a copy of the ballot title to the Attorney General for the purpose of this determination. The statutory language does not state that the five-day period commences upon the date the Attorney General receives notice of the filing from the Secretary of State. ¶14 During oral argument before the Court en banc, counsel for the Attorney General argued that the Attorney General's construction of 34 O.S. § 9 was a long-standing construction of a statute by a state agency, and that a long-standing construction should be given deference by the Court. We agree that deference may be afforded to the long-standing construction of a statute by a state agency.7 We also recognize that continual construction of a statute by the agency charged to enforce it must be given great weight; and that when the Legislature has convened many times during a period in which an administrative agency has construed a statute and it has not expressed its disapproval with that construction, the Legislature's silence may be regarded as acquiescence in or approval of the agency's construction.8 However, upon a closer examination of the Attorney General's argument, we conclude that these principles do not apply. ¶15 Generally, a published Attorney General Opinion may be persuasive authority for a court, but a court is not bound by the Opinion of the Attorney General.9 It is also correct that legislative silence after promulgation of a published Attorney General Opinion may be judicially construed as a legislative approval of an Attorney General's construction of an ambiguous and uncertain statute.10 But in the matter before us, no published Attorney General Opinion has been cited in support of the Attorney General's construction of 34 O.S. § 9. We have no Attorney General Opinion before us that would allow us to examine its ratio decidendi for a quality of persuasiveness in legal argument. No published agency rule has been cited by the Attorney General.11 The record of facts before us contains no reference to a previous public construction of 34 O.S. § 9 by the Attorney General on the issues before the Court.12 ¶16 Deference given to a state agency's construction of a statute is based upon the statute's language being ambiguous or uncertain,13 and the fact that the agency's construction must be legally reasonable when applied to the circumstance,14 and the agency's construction must be consistent and continual in a public manner so that the Legislature has notice of the construction by the agency.15 Is 34 O.S. § 9 ambiguous and uncertain? We think not, and rules of construction for determining legislative intent for an ambiguous statute are not needed in this case. ¶17 Prior to 1994, paragraph § 9(D) expressly provided for the five-day period to commence on the date the ballot title was filed "with the Attorney General."16 In 1994 this language expressly stating that the five-day period commenced upon filing with the Attorney General was removed from the statute by legislative amendment.17 The 1994 amendment also added language that the Secretary of State "shall submit the proposed ballot title to the Attorney General for review as to legal correctness."18 In one legislative act the Secretary of State was given the duty of providing a copy of the ballot title to the Attorney General for a review of the ballot title's legal correctness and the date to commence the five-day period for the Attorney General to file an objection was changed.19 ¶18 During oral argument before the Court en banc, counsel for the Attorney General argued that a "five full days" were needed by the Attorney General to examine a proposed initiative and ballot title to make a correctly reasoned and informed approval of, or objection to, a ballot title, and that the Attorney's General's five-day limit should not be shortened by whatever means the Secretary of State may, in his or her discretion, use to provide a copy of the ballot title to the Attorney General. In the absence of evidence to the contrary, a court will generally presume that a public official will act in good faith to perform the official's duties and will faithfully discharge the duties the law imposes on the official.20 We decline to assume that a Secretary of State will select a method of notice that is inconsistent with 34 O.S. § 9(D), or that a Secretary of State is either unwilling or unable to convey a copy of the ballot title to the Attorney General immediately upon its filing when the Secretary of State performs this duty imposed by 34 O.S. § 9(D). ¶19 Because of the arguments of the parties, we must note that the day an initiative petition is filed with the Secretary of State is not counted as the first day of the five-day period because fractions of a day are disregarded in statutory computations which include more than one day and when there is no question of priority involved.21 We must note that § 9(D) does not use the language suggested by the Attorney General that it is necessary that he be provided "five full days" to file a response to the ballot title. The statute requires the Attorney General's response within five days from the filing with the Secretary of State. We also note that the "five days" is further defined by the statute as five business days. We construe the phrase "business" to be consistent with 25 O.S. Supp. 2012 § 82.1, and therefore exclude statutory "holidays" defined in § 82.1, so that a business day would be Monday through Friday, inclusive, and does not include Saturday, Sunday, or any statutorily listed holiday in § 82.1 which may fall on any day within the five-day period after the initiative petition and ballot title are filed with the Secretary of State.22 ¶20 After a proponent submits a copy of both the proposed measure and ballot title to both the Secretary of State and the Attorney General, and before signatures are collected, the Secretary of State submits the proposed ballot title to the Attorney General for review as to legal correctness, and the Attorney General must respond within five business days, and the response must state whether a proposed ballot title complies with applicable laws.23 If the Attorney General objects to the ballot title, then the Attorney General must file with the Secretary of State a corrected ballot title within "ten (10) business days of determining that the proposed ballot title is defective."24 ¶21 The ballot title was filed with the Secretary of State on Wednesday, September 18, 2013. The first day of the five-day period was Thursday, September 19, 2013, and the fifth day was Wednesday, September 25, 2013. The response was filed by the Attorney General with the Secretary of State on Friday, September 27, 2013. The response was filed two days late. Proponents argue that the Attorney General had ten business days from September 25, 2013, to file a new ballot title and the new ballot title had to be filed by Wednesday, October 9, 2013. They argue that the ballot title filed by the Attorney General on Friday, October 11, 2013, was untimely and of no legal effect. However, if the filing of the Attorney General on September 27, 2013, although untimely, still retained legal efficacy, then the ballot title filed by the Attorney General on October 11, 2013, was on the tenth business day after he filed his initial response to ballot title. ¶22 Proponents argue that the 34 O.S. § 9 (D) duty imposed on the Attorney General is a mandatory duty to file a response within five business days; and then if an objection to the ballot title is timely made, the duty to file a new ballot title within ten business days is also a mandatory duty. Proponents conclude that because the time limit is mandatory it is also jurisdictional. They state that the Attorney General lost jurisdiction to respond to the ballot title and to file a new ballot title when he did not file within five days from the date the ballot title was filed with the Secretary of State. ¶23 Generally, the legal principle which has been followed in this jurisdiction for many years is that a public official performing a statutorily required duty will not be divested of jurisdiction to perform that duty by the mere passage of time unless the statute also states that the duty shall not be performed by that official after the expiration of a certain time or date. For example, in School District No. 61, Payne County v. Consolidated District No. 2, Coyle, Logan County, 1925 OK 518, 237 P. 1110, we stated the following: The case of People v. Cook, 14 Barb. (N. Y.) 259 [1852], seems to be one among the early cases passing upon this question, and is frequently referred to in later decisions, wherein the following rule is announced in the syllabus of the opinion: Statutes directing the mode of proceeding by public officers are directory, and a strict compliance with their provisions is not essential to the validity of the proceedings, unless it be so declared in the statute. Within this principle, where a statute directs a public officer to do a thing within a certain time, without any negative words restraining him from doing it afterwards, the naming the time will be regarded as directory merely, and not as a limitation of his authority. This rule has been very steadfastly adhered to, by the courts, in all cases where certain acts are directed to be done, by public officers, within a stated time, and in a particular manner, when those acts are of a public character, and concern the public interests, or when the rights of third persons are concerned. A discussion of the rules announced in the syllabus above quoted will be found on page 290 and the following pages of the opinion, citing numerous authorities illustrating the application of the rules announced. In 25 R. C. L. p. 769, § 16, the following language is found: "In general, statutory provisions directing the mode of proceeding by public officers and intended to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties cannot be injuriously affected, are not regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. * * *" School District No. 61, Payne County, 237 P. at 1111 (emphasis added). Application of School District No. 61, Payne County, supra, requires an examination of 34 O.S. § 9, and a determination if any words state that the acts required by the Attorney General shall not be done in any other manner or time than that designated. There is no express language in 34 O.S. § 9 which removes jurisdiction from the Attorney General to file an objection to a ballot title two days late, and there is nothing in the plain language of § 9 indicating a legislative intent to remove the Attorney General from the ballot title procedure by an untimely response to the filing of an initiative or ballot title.25 ¶24 Our opinion in School District No. 61, Payne County, supra, was released in 1925 and applied a principle used by several courts since at least 1852.26 Proponents have not made any argument that the holding in School District No. 61, Payne County, supra, has been superseded. The rationale used in School District No. 61, Payne County, supra, is found in other contexts such as the general rule that jurisdiction of a court, once correctly invoked, will not usually be divested by a subsequent event such as the passage of time unless a statute expressly states the contrary or if a legislative intent is shown that would make a time limit mandatory.27 Proponents have not made any argument that a recognized public policy calls for modifying or overruling School District No. 61, Payne County, supra. The Legislature is certainly aware that in the context of the initiative process it may restrict a filing after a certain date, and appears to have used such language in 34 O.S. 2011 §4, where with reference to filing signature sheets with the Secretary of State it has enacted language stating that "additional signature sheets shall not be accepted after 5:00 p.m. on the ninetieth day."28 ¶25 We recognize the possibility that a statute may express a mandatory requirement in the absence of express language stating that the requirement is mandatory. Several rules of construction may be used to make a determination whether express language is necessary to create mandatory law or alter certain legal interests in a particular circumstance.29 Specifically, when examining whether statutory language is mandatory in the context of statutorily specified time limits, the Court may examine whether statutory time limits "attach directly to the right created."30 Before us today we have no authority cited in either briefs or in oral argument concerning whether express language is necessary to show a mandatory statutory requirement in this context or whether the five-day limit attaches to a right itself. However, the issue presented is publici juris because it concerns the proper procedure used by the People when enacting legislation.31 Because the issue is publici juris and no additional evidence is necessary to adjudicate an issue of law, we may nevertheless adjudicate the issue whether the five-day period is mandatory in nature.32 ¶26 The purpose of the statutory initiative process is to provide a procedure where the People, the citizens of Oklahoma, exercise their right of initiative whereby they propose bills and laws and enact them or reject them at the polls independent of legislative assembly.33 This right of the People to enact laws through an initiative petition process is reserved in Article V § 1 of the Oklahoma Constitution,34 and we have explained that the People's right is a fundamental and precious right zealously protected by this Court.35 Proponents view the Attorney General's participation in the initiative petition process in this case as an obstruction to the People's right of initiative. We disagree. As we explain herein, the Attorney General's participation is not as a typical counsel in an adversarial litigation dispute. An Attorney General does not use the People's initiative process as a vehicle to champion his or her political positions. An Attorney General's participation in an initiative process is as a neutral legal advisor for the People. The Attorney General is required by statute to give an opinion on a ballot title proposed with an initiative petition and is required by statute to defend ballot titles, either those filed by proponents which he approves, or those authored and filed by the Attorney General. Participation by the Attorney General in every initiative petition proceeding is required by statute. ¶27 The Constitution grants to the People a right to an initiative and states that the Legislature shall make suitable provisions for carrying into effect this right,36 and the statutorily required participation by the Attorney General in the ballot title process is part of the initiative process for carrying into effect the right of the People. As we note herein, a properly worded ballot title is one means used to combat fraud and deceit in the initiative process. The ballot title functions as a safeguard to protect the initiative right of the People, and "we will not cripple, avoid or deny by technical construction the initiative right."37 This portion of Proponents' argument ultimately rests upon a technical construction that the five-day filing period for the Attorney General in 34 O.S. § 9(D) must be attached to a right possessed by, and litigated by, an Attorney General. We reject this view as contrary to the plain language of 34 O.S. § 9(D) and conclude that the five-day period § 9(D) does not attach directly to a statutorily created right possessed by the Attorney General. The plain language of the statute places a duty upon the Attorney General that is the nature of the exercise of a governmental function that is part of a legislative process used by the People. ¶28 Proponent's jurisdiction argument requires a determination whether the Legislature "had uppermost in mind" the effect of the procedural step at issue upon the process, and whether the Legislature intended it not as a "mere procedural step" but a requirement that was essential to the result of the process or the Legislature's intended goal.38 In Proponents' argument, the "procedural step" which they urge as jurisdictional is the timeliness of the response filed by the Attorney General. However, we find no legislative intent in the plain language of the statute to make the timeliness of the response an essential or critical step in the result of the initiative process. ¶29 Our conclusion will not impose any additional burden upon the People to propose initiatives. This is so because (1) the Attorney General concedes that timeliness of his actions may be controlled by mandamus, and (2) as explained herein, we recognize that a proponent's ninety-day period to collect signatures may commence after a ballot title appeal in accordance with the plain language and meaning of the ballot title statutes and prior opinions of this Court. ¶30 We have stated the general rule that "Those who challenge the validity of actions of public officials apparently within their statutory powers must carry the burden of demonstrating such invalidity."39 Proponents have not met their burden to show that the Attorney General's filing two days late deprived the filing of legal effect. We reject the argument made by Proponents that the time limits for the Attorney General in 34 O.S. §9(D) are jurisdictional. We hold that the Attorney General's § 9(D) response to a ballot title required by law to be filed within five days from the date the ballot title is filed with the Secretary of State is statutorily effective although the Attorney General's filing is two days late. School District No. 61, Payne County, supra. ¶31 Although we reject Proponents' argument that the five-day time limit for the Attorney General in 34 O.S. § 9(D) is jurisdictional, we must note that an Attorney General may not thwart an initiative by failing to file a response to the filings with the Secretary of State. Counsel for the Attorney General observed in his brief and during oral argument that the proper judicial remedy for a violation of this five-day deadline would be a writ of mandamus to compel a response.40 We also note that although the Attorney General states that mandamus may be used, he also invokes the substantial compliance standard of 34 O.S. § 24.41 ¶32 In some circumstances, judicial application of a substantial compliance standard to a duty to take an action within a defined period of time may result in an excused performance within that time period.42 Although not expressly argued as a syllogism, when his § 24 substantial-compliance-standard argument is combined with his argument that after receipt of the ballot title by the Attorney General a "full five days" of legal research is needed by the attorney(s) assigned to review a proposed ballot title and file a response with the Secretary of State, he is essentially creating a syllogism with the conclusion that he should be excused from the five-day period for filing a response to a ballot title because factual circumstances prevent him from meeting this deadline. With this conclusion, the Attorney General's hypothetical mandamus action would not turn on whether the Attorney General had missed the five-day deadline, but whether the Attorney General had sufficient factual reasons for delay past the five-day deadline and only when such reasons were legally insufficient would the writ issue.43 We decline to adopt this view. ¶33 There is no suggestion or evidence before us from the Attorney General that fulfilling the duty to file an initial response to a ballot title takes more than five days. We assume that a Secretary of State will act in good faith and perform his or her duty and provide a copy of ballot title to an Attorney General immediately upon its filing. Berryman v. Bonaparte, supra. We also assume that an Attorney General will act in good faith and perform his or her duty and file a timely response to any ballot title filing with the Secretary of State. Id. ¶34 We agree with that part of the Attorney General's statement that the statutory role of the Attorney General in drafting a ballot title does not place him in the usual and ordinary adversarial posture that occurs in a litigation context, or provide him with a public platform to express political views. He represents all of the People in the context of either approving a ballot title written by others or providing one which he authors. The purpose of a ballot title along with the gist appearing on a signature page is to prevent deceit and fraud in the initiative process.44 We agree with the Attorney General that he is required by statute to be made a defendant if anyone timely objects to a proposed ballot title,45 and he must defend a ballot title, either one prepared by a proponent which he approved and did not alter, or one he authored and substituted for the initial title. His filing a response to the ballot title is an important step in the process of the initiative to help prevent deceit and fraud, and that filing should not be made ineffective in the absence of legislative intent requiring that result. ¶35 Ideally, in this limited role as a legal advisor to the People, the Attorney General is not merely reactive to a particular proponent of an initiative who fails to provide him with statutorily required notice, or merely reactive to a particular Secretary of State who selects a means of notice to the Attorney General that is less than immediate. But rather, that he takes positive action for a quick review of the ballot title once it is filed with the Secretary of State and he has notice of its filing. Ideally, a proponent of an initiative and a Secretary of State would provide the Attorney General with the types of notice which the statutes require and the Attorney General needs. We are confident that proponents of initiatives, the Secretary of State, and the Attorney General will work together in the future to avoid the procedural issues which are a large part of this controversy. II. Burden of Proof and Standard of Review Proponents claim that in a ballot title appeal the Attorney General bears the burden of proof to show that a ballot title proposed by Proponents did not satisfy legal requirements. ¶36 Any person who is dissatisfied with the wording of ballot title for an initiative petition may bring a proceeding in this Court pursuant to 34 O.S. § 10.46 The Attorney General is required to "defend the ballot title from which the appeal is taken."47 Oklahoma Supreme Court Rule 1.194 provides that an objection to an initiative petition is commenced in the Supreme Court and the controversy proceeds in accordance with the procedures set out in 34 O.S. § 8. It further states that the proceeding shall be treated as an original action, and that the parties shall be afforded a trial de novo.48 The procedure for an appeal of a ballot title is the same for proceedings challenging the petition when no statutory conflict necessarily exists between the statutes for the two types of proceedings.49 ¶37 Generally, statutes on the same subject matter are viewed in pari materia and construed together as a harmonious whole giving effect to each provision.50 However, we need not rely on this principle as a rule of statutory construction because the plain language of 34 O.S. §§ 8, 9, 10 and 11 make express reference to each other and expressly require that the statutes be construed and applied together. For example: B. It shall be the duty of the Secretary of State to cause to be published, in at least one newspaper of general circulation in the state, a notice of such filing and the apparent sufficiency or insufficiency of the petition. Such publication shall include the text of the ballot title as reviewed or, if applicable, as rewritten, by the Attorney General pursuant to the provisions of subsection D of Section 9 of this title, and shall include notice that any citizen or citizens of the state may file a protest as to the constitutionality of the petition, by a written notice to the Supreme Court and to the proponent or proponents filing the petition, or as to the ballot title as provided in Section 10 of this title. Any such protest must be filed within ten (10) days after publication. A copy of the protest shall be filed with the Secretary of State. 34 O.S.2011 § 8(B) (emphasis added). A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) days after the same is published by the Secretary of State as provided for in subsection B of Section 8 of this title, appeal to the Supreme Court by petition in which shall be offered a substitute ballot title for the one from which the appeal is taken. Upon the hearing of such appeal, the court may correct or amend the ballot title before the court, or accept the substitute suggested, or may draft a new one which will conform to the provisions of Section 9 of this title. 34 O.S.2011 § 10 (A) (emphasis added). Notice of the appeal provided for in the preceding section shall be served upon the Attorney General and upon the party who filed such ballot title, or on any of such parties, at least five (5) days before such appeal is heard by the court. The Attorney General shall, and any citizen interested may, defend the ballot title from which the appeal is taken. Other procedure upon such appeals shall be the same as is prescribed for appeals from petitions filed as set forth in Section 8 of this title. 34 O.S.2011 § 11 (emphasis added). The plain language in these statutes requires applying them together as a whole because: (1) § 8 refers to the Attorney General's ballot title in § 9 and an appeal with reference to § 10; (2) § 10 refers to both §§ 8 and 9 for application of § 10; and (3) § 11 refers to the appeal "provided for in the preceding section," (i.e., § 10), and then incorporates consistent § 8 procedure for initiative appeals into the procedure for a ballot title appeal by using the phrase, "Other procedure upon such appeals shall be the same as is prescribed for appeals from petitions filed as set forth in Section 8 of this title." Section 9 refers to the requirements for a ballot title and the procedure for a ballot title prepared by the Attorney General, and it provides that if an appeal is taken from a ballot title within the time specified in Section 10 of this title, then the Secretary of State shall certify to the Secretary of the State Election Board the ballot title which is finally approved by the Supreme Court. 34 O.S. 2011 § 9 (D) (2). These statutes clearly and plainly provide that any person who is dissatisfied with the ballot title may file an appeal in this Court, the Attorney General defends the action, the procedure for a ballot title appeal is governed by the specific statutes for such, and then additional consistent procedures from initiative appeals are incorporated into ballot title appeals by 34 O.S. § 11. ¶38 Proponents argue that the Attorney General has failed to meet his burden of proof in this proceeding. They argue that the Attorney General must meet the burden of showing that the ballot title proposed by Proponents is legally insufficient. We disagree with the conclusion made by Proponents. ¶39 Generally, the party invoking a court's judicial discretion with a request for judicial relief must satisfy the applicable burden for the relief sought. A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.51 An appeal of a ballot title is prosecuted using the Court's original jurisdiction.52 In an original jurisdiction proceeding a petitioner has the burden to produce facts in support of a claim,53 as well as a burden to present legal issues with supporting authority.54 In the present context, the burden on Proponents is to raise legal issues in a procedurally proper manner and show those facts in a procedurally proper manner which are necessary to support the legal issues Proponents raise. ¶40 When an Attorney General changes a ballot title, the ballot title written by the Attorney General becomes the ballot title for that initiative unless the title is altered on an appeal to this Court. The Attorney General's ballot title is the one "from which the appeal is taken." 34 O.S. § 10. The party bringing an appeal shall file a "petition in which shall be offered a substitute ballot title." Id. In the present case, it is the ballot title filed by the Attorney General which is the ballot title of the initiative, unless changed on appeal. The Court has accepted a ballot title written by an Attorney General when the Court could not conclude that the text for the ballot title was "clearly contrary" to the command of statutory law.55 We have stated, "Where the title submitted by the Attorney General is found sufficient it is generally approved and utilized regardless of the sufficiency of those submitted by other parties."56 The burden is on Proponents to show that the ballot title prepared by the Attorney General is clearly contrary to either statutory law or the Oklahoma Constitution. III. The Attorney General's Ballot Title Proponents claim that the ballot title prepared by the Attorney General violates statutory law and displays partiality. ¶41 Petitioners' initially proposed ballot title, now the substitute ballot title offered on appeal, states as follows: This measure amends the Oklahoma Constitution. It adds a new section 44 to Article 10. Bonds could be sold. Up to Five Hundred Million Dollars ($500,000,000.00) could be available. Bond money would be used for school districts and career technology districts. Bond money would be used for storm shelters or secure areas. State franchise taxes would repay these bonds. If money from franchise tax was not enough, the Legislature could use the General Revenue Fund to repay the bonds. State bond money could be used by school districts or career technology districts to reduce local debt or eliminate local debt incurred for storm shelters or secure areas. If enough money from franchise tax remains after state bonds are paid for, the balance of franchise tax could be used for grants for storm shelters for people and businesses. When state bonds are paid off, additional bonds could be sold to keep the programs funded. Laws would be written for details about using bond money. State agencies could make rules about state bond money. These rules would have the effect of law. The Oklahoma State Constitution is being amended to allow state bond money to pay for shelters and secure areas in schools. ¶ 42 The current ballot title for the initiative, the ballot title prepared by the Attorney General, states as follows: This measure adds Article 10, Section 44 to the Oklahoma Constitution. The new section authorizes the issuance of up to 500 million dollars in State bonds. The bond money would be used by local school districts and career technology districts for storm shelters and campus security. The measure does not provide for new State revenues to pay for the bonds. Under the measure the State franchise tax revenues would no longer go into the General Revenue Fund, which is the primary fund used to pay for State Government. Rather, franchise taxes revenues would be used for annual bond payments (principal and interest). In any year in which the franchise tax revenues are not sufficient to make annual payments, the Legislature, at its discretion, could use General Revenue Fund monies to make the annual bond payment. In years in which not all the franchise tax revenues are needed to make payments, the remaining franchise tax revenues - with Legislative approval - could be used for storm shelter grants to individuals and businesses. In authorizing these bond and grant programs, the measure creates exceptions to the Constitution's prohibitions on gifts and the use of the state's credit. ¶43 A ballot title has six basic requirements set forth in 34 O.S. § 9 (B). A suggested ballot title: 1. Shall not exceed two hundred (200) words; 2. Shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition; 3. Shall not contain any words which have a special meaning for a particular profession or trade not commonly known to the citizens of this state; 4. Shall not reflect partiality in its composition or contain any argument for or against the measure; 5. Shall contain language which clearly states that a "yes" vote is a vote in favor of the proposition and a "no" vote is a vote against the proposition; and 6. Shall not contain language whereby a "yes" vote is, in fact, a vote against the proposition and a "no" vote is, in fact, a vote in favor of the proposition. 34 O.S.2011 § 9 (B), in part. ¶44 Proponents' arguments against the Attorney General's ballot title are that it is legally incorrect and displays partiality. In their original brief the only argument challenging the ballot title is that it "is designed to over emphasize the franchise tax issue and under emphasize the true purpose of the Initiative which is storm shelters and secure areas for schools and children . . . The proposal from the Attorney General is misleading, confusing and will not help the average voter when he or she votes." Their Supplemental Brief makes the following four arguments against the ballot title. 1. The second paragraph shows partiality because it makes an argument against the proposition because it states that no new revenues are raised to pay for the bonds; 2. The second paragraph shows partiality because it suggests potential harm to the General Revenue Fund since it states that the franchise tax revenue will not be deposited to that fund; 3. The second paragraph is legally incorrect because by the time the Proposed Measure is adopted the Legislature could direct franchise taxes to some fund other than the General Revenue Fund; and 4. "The last paragraph is legally incorrect since passage of the measure amends to [sic] Constitution to provide for such." These first three arguments object to ¶ 2 of the title which states that: The measure does not provide for new State revenues to pay for the bonds. Under the measure the State franchise tax revenues would no longer go into the General Revenue Fund, which is the primary fund used to pay for State Government. Rather, franchise taxes revenues would be used for annual bond payments (principal and interest). ¶45 Proponents object to the first sentence and state that it reflects partiality. The sentence: "The measure does not provide for new State revenues to pay for the bonds" is factually correct, as the measure states that the franchise tax in "section 1201 et seq. of Title 68" will be used to pay the bond obligation. ¶46 During oral argument before the Court en banc, Proponents refined this argument and used the language in the first sentence and the mention of "franchise tax" in more than one place in the ballot title as evidence of partiality. In other words, they argued that the Attorney General overemphasized use of the franchise tax, and it is this overemphasis which shows partiality. ¶47 The proposed measure contains the following language. E. The Legislature shall provide by law for the apportionment of the revenues currently derived from the levy of the franchise tax imposed for the privilege of doing business in this state as authorized pursuant to Section 1201 et seq. of Title 68 of the Oklahoma Statutes, as amended, so that one hundred percent (100%) of such franchise tax revenue, or so much thereof as may be required on an annual basis, is dedicated for the repayment of the obligations issued pursuant to the provisions of this section. F. The Legislature may provide by law for the use of revenues derived from the levy of franchise tax which are not required for repayment of obligations issued pursuant to the provisions of this section in order to provide a grant program for construction of storm shelters for individuals and business entities. Such program shall be administered by the Office of Emergency Management or its successor. The use of franchise tax revenues for storm shelters as authorized by this subsection shall be deemed in furtherance of a public purpose and shall not be deemed a gift of state tax revenues. G. If the revenues described by subsection E of this section are insufficient to repay the obligations pursuant to the provisions of this section, the Legislature may use monies in the General Revenue Fund of the state not otherwise obligated, committed or appropriated in order to ensure the repayment of such obligations. Two paragraphs of this proposed measure expressly refer to the franchise tax and one refers to "the revenues" which is a reference to revenue from the franchise tax. A ballot title shall explain the effect of a proposition. 34 O.S. § 9 (B) (2). We may summarize the effect of these paragraphs and enumerate the references in the measure to franchise tax revenue as follows: In paragraph "E" (1) The Legislature shall provide by a legislative apportionment that 100% (or so much as is needed) of the franchise tax revenue is dedicated to repayment of certain obligations. In paragraph "F" (2) The Legislature may use amounts from the franchise tax revenue that are not necessary for repayment of certain obligations for a grant program for construction of storm shelters for individuals and business entities. (3) The use of franchise tax revenues for storm shelters as authorized by this subsection shall be deemed in furtherance of a public purpose and shall not be deemed a gift of state tax revenues. In paragraph "G" (4) If the revenues described by subsection E of this section [i.e., franchise tax revenues] are insufficient to repay the obligations pursuant to the provisions of this section, the Legislature may use monies in the General Revenue Fund . . . . In the proposed measure there are three express references to the franchise tax revenue and one grammatical reference, or a total of four references. In the Attorney General's ballot title there are five references to the franchise tax revenue that are used to explain the four references we have identified in the proposed measure. We also note that the phrase "franchise tax(es)" expressly appears four times in Proponent's proposed ballot title. ¶48 The difference of one reference is attributed to the sentence in the Attorney General's ballot title which states that "Under the measure State franchise tax revenues would no longer go into the General Revenue Fund, which is the primary fund used to pay for State Government." The proposed measure does refer to the General Revenue Fund in paragraph "G" of the measure but without giving a definition for "General Revenue Fund." This reference to the Fund in the proposed measure, as well as the express reference to the Fund in Proponent's substitute title, are not references to the franchise tax revenue going into the Fund prior to an enactment of the measure. ¶49 In one case we stated that a single sentence may express partiality and be argumentative, if when explaining a proposed measure it also includes what other states have done or might do with a proposal similar to that to be voted on by the citizens in Oklahoma.57 For the purpose of examining partiality in a ballot title, we noted the difference between a ballot title stating what other States might do and what the proposed Oklahoma measure would do under then current law.58 In this circumstance, the possibility of what voters in other states would do was considered to be beyond the legal effect or legal scope of the proposed measure; i.e., it amounted to a policy argument and not a statement of a legal effect created by the enactment of the proposed measure. ¶50 A similar issue arose in another case where we discussed legal effect and noted that a portion of a ballot title was misleading. The misleading nature of language in the title was not because the title expressed something as a legal effect when it was a contingency, but because the title did not explain the correlation between the contingency and the legal effect of the measure.59 ¶51 Current law states that the franchise tax shall be deposited into the General Revenue Fund.60 Proponents do not dispute that the General Revenue Fund is the primary fund used to pay for state government.61 While the measure does not state that the current franchise tax is paid into the General Revenue Fund, and the measure does not define "General Revenue Fund," one effect from the proposed measure is clearly to change the franchise tax revenue from deposit into the Fund to a dedicated purpose of funding the construction of storm shelters. Proponents argue that "[w]here the revenue of the franchise tax is currently being deposited is irrelevant and has no impact as to the legal correctness of the ballot title as it does not matter where such revenue is deposited since the petition would direct that the revenue from the franchise tax be used to repay the bond debt." Section 9(B) expressly states that the ballot title: "Shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition." 34 O.S. § 9(B)(2). Since (1) the franchise tax is currently being collected and being used for one use (deposited in the General Revenue Fund) and the measure states a new use for the tax (to pay for bonds), and (2) one purpose of a ballot title is to explain the effect of a proposed measure with reference to current law, the Attorney General did not impermissibly explain that funds currently being deposited in one fund will be used for a different purpose. We do not find the one additional reference to the franchise tax and the definition of the General Revenue Fund to be argumentative or displaying partiality. ¶52 A ballot title shall not exceed two hundred words, 34 O.S. § 9(B)(1). We do not view the use of five references to the franchise tax as opposed to four to be excessive to the point of displaying partiality when the Attorney General is attempting to summarize a measure in less than two hundred words and uses grammatical shortcuts to achieve this goal. ¶53 Stating that funds currently deposited in one fund will be used for a different purpose does not, by itself, state that a "harm" will occur to that fund. The claim that the title is contrary to law because the Legislature could change the state fund where franchise taxes are deposited, or change their use prior to a vote on the proposed measure, is a claim simply without merit. The ballot title is required to state its effect on current law. While it is certainly possible that a Legislature could create a law with an effective date sufficiently in the future so as to have an impact upon an initiative petition, Proponents have pointed to no law which has been created for a future effective date that would alter the proposed measure's legal effect. ¶54 Proponents object to the last paragraph of the Attorney General's ballot title and argue that it is legally incorrect. The last paragraph states: " In authorizing these bond and grant programs, the measure creates exceptions to the Constitution's prohibitions on gifts and the use of the state's credit." Their objection is that passage of the measure itself provides for amending the Constitution. ¶ 55 We note that while Proponents' substitute title does not mention gifts or the state's credit, the proposed measure states in paragraph "F" that the use of the franchise tax for the storm shelters as authorized by this subsection " . . . shall not be deemed a gift of state tax revenues" and in paragraph "M" the measure states that: The proceeds from the sale of obligations issued pursuant to the provisions of this section may be made available to any common school district or any career technology district for the purposes authorized by this section and enabling legislation enacted pursuant to this section notwithstanding any other provision of the Oklahoma Constitution that would otherwise prohibit or restrict the use of such proceeds or the use of tax revenue for the repayment of principal, interest, reserves, issuing costs or other costs related to the sale of the obligations authorized by this section. Any provision of the Oklahoma Constitution that would otherwise restrict the use of tax revenues for repayment of the obligations or in any way restrict the operation of the provisions of this section shall be deemed to have been amended in order to remove any such restrictions. Proponents argue that the proposed measure states that the Constitution "is amended," and their substitute ballot title states that " The Oklahoma State Constitution is being amended to allow state bond money to pay for shelters and secure areas in schools." The Attorney General argues that while bond money is to be used to pay for shelters, the proposed measure also enacts a means or method for attaining this goal or ultimate purpose, and that means is achieved by amending the Constitution and creating exceptions to the Constitution's prohibitions on gifts and the use of the state's credit. Proponents' have not demonstrated that the Attorney General has incorrectly stated the legal effect of the measure on this point. ¶56 Proponents also argue that the Attorney General makes a claim that "there may not be any funds available to pay the bond holders," and Proponents argue that the statement " . . . is false, so this false statement is irrelevant to the legal correctness of the ballot title as submitted by the Petitioners." The Attorney General's ballot title does not contain this language. The actual statement in the ballot title is: "In any year in which the franchise tax revenues are not sufficient to make annual payments, the Legislature, at its discretion, could use General Revenue Fund monies to make the annual bond payment." The actual statement in the proposed measure states that: G. If the revenues described by subsection E of this section are insufficient to repay the obligations issued pursuant to the provisions of this section, the Legislature may use monies in the General Revenue Fund of the state not otherwise obligated , committed or appropriated in order to ensure the repayment of such obligations. The language in the Attorney General's ballot title summarizes this language in the proposed measure and is not misleading. ¶57 Proponents argue that the Attorney General's ballot title creates doubt whether the Legislature is required to repay the bond obligations. Again the actual provision of the Attorney General's ballot title states that: "In any year in which the franchise tax revenues are not sufficient to make annual payments, the Legislature, at its discretion, could use General Revenue Fund monies to make the annual bond payment." Again, this language summarizes paragraph "G" of the measure and is not misleading. The Attorney General correctly indicates that the Legislature could use funds from the General Revenue Fund or from another source to repay the bond obligations. Paragraph "G." of the proposed measure states that " . . . the Legislature may use monies in the General Revenue Fund of the state . . . ." (emphasis added). The Attorney General's ballot title language is not a false statement. ¶58 Proponents state that the ballot title reflects partiality because it states that franchise taxes will not be paid into the General Revenue Fund. The substitute ballot title by Proponents discusses a relationship between the franchise tax and the General Revenue Fund: "If money from franchise tax was not enough, the Legislature could use the General Revenue Fund to repay the bonds." Proponents challenge the meaning of language on a point which they have in their substitute ballot. The Attorney General's language explains the effect of the proposition, and under current law, is factually correct. This objection is without merit. ¶59 If the Attorney General's text for the ballot title is not "clearly contrary" to the command of statutory law, then his ballot title is accepted and the Court need not examine Petitioners' substitute ballot. A ballot title must reflect the character and purpose of the measure and it must not be deceptive or misleading, and it must also be free from uncertainty and ambiguity.62 We have stated that: "The test is whether the title is couched in such a way that voters are afforded an opportunity to fairly express their will, and whether the question is sufficiently definite to apprise voters with substantial accuracy what they are asked to approve."63 ¶60 Nothing in Proponents' arguments show where the Attorney General's ballot title fails to state the legal effect of the proposed measure under current law. Further, we conclude that the Attorney General's proposed ballot title fulfills the requirements of 34 O.S.2001 § 9, because it accurately reflects the effects of the proposed amendment to the State Constitution by informing the electorate concerning the principle thrust of the proposition; i.e., to fund the construction of storm shelters by using franchise tax revenues, bonds, and other resources within the discretion of the Legislature. IV. Request for Time to Collect Signatures Proponents request additional time to collect signatures, or in the alternative a new ninety-day period to collect signatures. ¶61 In their Supplemental Brief, Proponents cite 34 O.S. § 8(E) and request an additional ninety (90) days to collect signatures, and they make a more developed argument in their Reply Brief where they rely upon In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 649 P.2d 545, 553 and 34 O.S. § 9 (D) and a former version of 34 O.S. § 8. ¶62 In re Initiative Petition No. 315, supra, states that "The 90-day period for circulation does not begin until the proposed title has been reviewed by the Attorney General, the 10-day appeal period has expired, and any appeals timely filed, exhausted." 649 P.2d at 553. The Attorney General argues that: (1) When In re Initiative Petition No. 315, State Question No. 553, supra, was decided the ballot title was part of the petition that was submitted to the Attorney General, (2) The ballot title is no longer part of the petition submitted to the Attorney General, and (3) The language in In re Initiative Petition No. 315, is no longer good law on this point. ¶63 The Attorney General's argument may be summarized as stating that the correctness of a ballot title need not be settled prior to collection of signatures because (1) the ballot title is not part of the petition when it is submitted to the Attorney General, (2) §§ 9 & 10 do not expressly delay collecting signatures until after a ballot title appeal has been settled, and (3) the petition and the gist of the measure on the signature page sufficiently inform the voters of the proposed measure. ¶64 Three bodies of text must be identified: (1) the petition, (2) the gist of the petition which appears on a signature page, and (3) the ballot title, which may, or may not be part of the petition for certain purposes (as we hold today). We have explained that both the gist and the ballot title work together to prevent fraud in the initiative process.64 A petition has "an exact copy of the title and text of the measure inserted."65 The petition and signature sheets together make a pamphlet, and each signature sheet is attached to a copy of the petition and has a gist of the measure on each signature page.66 If "the title" referred to in § 2 that is to be included as part of the circulated petition is not the correct "ballot title," and the correct ballot title need not be included on the circulated petition pamphlet, as indicated by the Attorney General, then one purpose of a ballot title in limiting fraud, deceit, and corruption in the initiative process would be severely limited. ¶65 The Attorney General correctly observes that the ballot title is treated as separate from the initiative petition in 34 O.S. § 9. The ballot title is also treated as part of the petition in 34 O.S. § 2. Giving effect to both of these provisions means that the ballot title is not part of the petition for the purpose of a ballot title appeal, but a ballot title is part of the initiative petition in 34 O.S. § 2, and thus part of the petition that is duplicated for securing signatures in 34 O.S. § 3. ¶66 Section 9(D)(1) clearly provides for filing the ballot title with the Secretary of State prior to collecting signatures. If an appeal is taken from the ballot title, then the Secretary of State certifies to the Secretary of the State Election Board the ballot title that is "finally approved by the Supreme Court." 34 O.S. § 9(D)(2). ¶67 Section 8(E) provides in part that: E. Within ninety (90) days after such filing of an initiative petition or determination of the sufficiency of the petition by the Supreme Court as provided in this section, whichever is later, the signed copies thereof shall be filed with the Secretary of State, . . . . 34 O.S.2011 § 8(E), in part, emphasis added. Proponents argue that "sufficiency of the petition" should include determination of a proper ballot title. While we agree that § 8(E) applies to a ballot title appeal and that the 90-day period to collect signatures commences after the ballot title appeal, our reasons are not those of Proponents. ¶68 The Attorney General is correct that the statutory scheme distinguishes a protest challenging the sufficiency of a petition from a protest (or appeal) of the ballot title, and this distinction is expressly made in § 8(B) where the separate authority for an appeal of the ballot title in § 10 is noted.67 . . . notice [shall include] that any citizen or citizens of the state may file a protest as to the constitutionality of the petition, by a written notice to the Supreme Court and to the proponent or proponents filing the petition, or as to the ballot title as provided by Section 10 of this title. . . . 34 O.S.2011 § 8(B), in part, and emphasis added. The Attorney General also argues that a "petition" does not include the ballot title, because a "ballot title" is submitted on a separate piece of paper "and shall not be deemed part of the petition." 34 O.S.2011 § 9(B).68 Two responses to this argument by the Attorney General are necessary. First, even with a statutory distinction between appeals on a ballot title and appeals on the legal sufficiency of a petition, one statute for a ballot title appeal states that the procedures which are part of a 34 O.S. § 8 appeal on a petition are also applicable to a ballot title appeal. Notice of the appeal provided for in the preceding section shall be served upon the Attorney General and upon the party who filed such ballot title, or on any of such parties, at least five (5) days before such appeal is heard by the court. The Attorney General shall, and any citizen interested may, defend the ballot title from which the appeal is taken. Other procedure upon such appeals shall be the same as is prescribed for appeals from petitions filed as set forth in Section 8 of this title. 34 O.S.2011 § 11, emphasis added. The procedure in § 8(E)69 states that signatures will not be collected until after a protest to a petition is finally determined. There is no express provision in the ballot title statutes for the ninety-day signature collection period as occurring either during or after a ballot title appeal. We thus hold that § 8(E) procedure for collecting signatures in a ninety-day period at the conclusion of a protest to a petition is also applicable to a ballot title appeal. ¶69 We also note that the Attorney General correctly identifies three types of legal proceedings involving initiative petitions: (1) protest to the constitutionality of the petition [§ 8 (B) proceeding], (2) protest to the ballot title [§§ 8(B) & 10 proceeding], and (3) an objection to the signature count [§ 8(H) proceeding]. The approach to these proceedings taken by the Attorney General would result in different times to commence collecting signatures based upon whether a protest to a petition was combined with a ballot title protest. According to the Attorney General, if only a ballot title protest is filed, then the 90-day period is not stayed pending resolution of the ballot title appeal. On the other hand, if a protest to the petition is combined with a ballot title protest, then the 90-day period does not commence until the protest to the petition is determined, which may or may not be the same date the Court decides the ballot title appeal; but in any event the date of any judicial decision(s) for commencing the ninety-day period would be different than for a ballot title. The last sentence of 34 O.S. § 11 requires more uniformity in procedure than that suggested by the Attorney General. The second response we have to the argument by the Attorney General is that the ballot title, that is the correct ballot title, must be part of the petition which in turn is part of the circulated pamphlet.70 A correct ballot title on the face of the initiative petition which is used during collection of signatures helps to prevent fraud and deceit in the initiative process. ¶70 A proponent has ninety days to collect signatures and file them with the Secretary of State. 34 O.S. § 8(E), and 34 O.S.2011 § 4.71 The Attorney General is correct that a proponent gets only one 90-day period to collect signatures. Because of 34 O.S. §§ 2, 3, 8(E) and 11, the ninety-day period commences or begins for Proponents herein in accordance with our holding in In re Initiative Petition No. 315, supra, where we stated that when a ballot title appeal has occurred the time to collect signatures does not begin until completion of that appeal. Id. 649 P.2d at 553. V. Conclusion and Rehearing ¶71 We hold that: 1. A proponent of an initiative petition must file or submit a copy of the initiative petition and a copy of the ballot title to the Attorney General when the proponent files the initiative petition and ballot title with the Secretary of State, 34 O.S. § 9 (A) & (B); 2. The Attorney General must file a response to a ballot title within five business days from the date the ballot title is filed with the Secretary of State, 34 O.S. § 9 (D); 3. The Attorney General's § 9(D) response to a ballot title is statutorily effective although the Attorney General's response was filed two days late; 4. A proponent of an initiative who challenges a ballot title prepared by the Attorney General has the burden to show that the Attorney General's ballot title is legally incorrect, or is not impartial, or fails to accurately reflect the effects of the proposed initiative; 5. The Attorney General's ballot title challenged in this proceeding is legally correct, impartial, and accurately reflects the effects of the proposed initiative; 6. When a ballot title appeal has been made, a proponent's ninety-day period of time to collect signatures commences when the ballot title appeal is final. ¶72 Should any party file a petition for rehearing, it must be filed within five business days from the date this opinion is filed with the Clerk of this Court.72 The first day of this five-day period is the first business day occurring immediately after this opinion is filed with the Clerk. Any party may file a response to a petition for rehearing and a response to a petition for rehearing may be filed within eight (8) business days after the date this opinion is filed with the clerk of this Court. The time limits to file a petition for rehearing and response shall not be extended. If no petition for rehearing is filed within five business days from the date this opinion is filed with the Clerk of this Court, then the opinion shall be final on the sixth business day after the opinion is filed with the Clerk. If any rehearing petition is timely filed within the five-day period, then the opinion shall not become final until all requests for rehearing are adjudicated. ¶73 CONCUR: REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ. ¶74 NOT VOTING: COLBERT, C. J. FOOTNOTES 1 W. R. Allison Enters., Inc. v. CompSource Okla., 2013 OK 24, ¶ 15, 301 P.3d 407, 411. The plain meaning of a statute's language is conclusive except in the rare case when literal construction produces a result demonstrably at odds with legislative intent. Head v. McCracken, 2004 OK 84, ¶ 13, 102 P.3d 670, 680. 2 State ex rel. Bd. of Regents of Univ. of Oklahoma v. Lucas, 2013 OK 14, ¶ 15, 297 P.3d 378, 387 ("If wording in a statute is plain, clear and unambiguous then the plain meaning of the words used must be judicially accepted as expressing the intent of the Legislature, and there exists no reason or justification to use interpretive devices or rules of construction to determine meaning."); Cline v. Oklahoma Coalition for Reproductive Justice, 2013 OK 93, ¶ 14, 313 P.3d 253, 258-259 (to determine the meaning of legislation we look to the plain language of the statute because the Legislature is presumed to have expressed its intent in the text of the statute; and only when the legislative intent cannot be ascertained from the statutory language in cases of ambiguity or conflict do we utilize rules of statutory construction); Rogers v. Quicktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 ("If a statute is plain and unambiguous, it will not be subjected to judicial construction but will receive the interpretation and effect its language dictates."). 3 In the Matter of J.L.M., 2005 OK 15, ¶ 5, 109 P.3d 336, 338. 4 Colclasure v. Colclasure, 2012 OK 97, ¶ 10, 295 P.3d 1123, 1135 ("The courts decide, as a matter of law, whether a contract provision is ambiguous."). 5 In the context of construing a statute we stated that whether language is ambiguous is a question of law, and we relied upon a similar statement applied to an insurance policy and the application of contract law. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 6, 136 P.3d 656, 658, citing American Economy Ins. Co. v. Bogdahn, 2004 OK 9 ¶ 11, 89 P.3d 1051, 1054. One reason YDF, Inc., supra, is correct is that a court's interpretation of statutory law presents a question of law. Troxell v. Okla. Dept. of Human Services, 2013 OK 100, ¶ 4, 318 P.2d 206. See Hogg v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, ¶ 7, 292 P.3d 29, 33 (" Ascertaining the meaning of statutory language is a pure issue of law."); In re De-Annexation of Certain Real Property from City of Seminole, 2004 OK 60, ¶ 18, 102 P.3d 120, 129 ("Statutory construction presents a question of law."). An interpretation of ambiguity solely from the statutory language is thus an interpretation of statutory law and presents an issue of law. 6 In a general sense, a court's adjudication of "reasonableness" may present an issue of fact, or an issue of law, or a mixed question of law and fact, depending upon how the concept of "reasonable" or "reasonableness" is applied for the type of adjudication at issue. See, e.g., Franco-American Charolaise, Ltd. v. Okla. Water Resources Bd., 1990 OK 44, 855 P.2d 568, 574-575 (discussion of the reasonableness of water use by a riparian owner and the conclusion that the issue was for a jury); Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶¶ 6, 26, 22 P.3d 695, 697, 701 (an example of determinations of "reasonableness" in the context of summary judgment review, and whether one, or more than one reasonable interpretation of undisputed facts is present). In this original jurisdiction matter we are asked to adjudicate the meaning of statutory language and not the existence of extrinsic facts. 7 United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, 789 P.2d 1305, 1311-1312. 8 United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, 789 P.2d at 1311-1312. 9 Austin, Nichols & Co. v. Okla. Cnty. Bd. of Tax-Roll Corrections, 1978 OK 65, 578 P.2d 1200, 1203. 10 Okla. Public Employees Ass'n v. State ex rel. Okla. Office of Personnel Management, 2011 OK 68, ¶ 24, 267 P.3d 838, 847. 11 The Court takes judicial notice of promulgated state agency rules. Lone Star Helicopters, Inc., v. State, 1990 OK 111, 800 P.2d 235, 237 (citing 75 O.S. § 252, which now states, in part, that " All courts, boards, commissions, agencies, authorities, instrumentalities, and officers of the State of Oklahoma shall take judicial or official notice of any rule, amendment, revision, or revocation of an existing rule promulgated pursuant to the provisions of the Administrative Procedures Act."). 12 The record of facts before us fails to show a consistent and continual construction of the statute in a public manner by the Attorney General that is consistent with the Attorney General's argument. Generally, argument of counsel is not a form of evidence. In re Guardianship of Stanfield, 2012 OK 8, n. 55, 276 P.3d 989, 1002 (unsworn statements by counsel do not constitute evidence); Willis v. Sequoyah House, Inc., 2008 OK 87, ¶¶ 12-13, 194 P.3d 1285, 1289-1290 (same). Also generally, proof consists in forms of testimony, deposition, affidavit, and other "acceptable evidentiary substitutes." Willis, 2008 OK 87, at n. 14. A ballot title appeal is prosecuted in this Court in the form of an original jurisdiction proceeding where the parties submit proof in support of their legal arguments, and they do not rely upon a record transmitted from a lower tribunal. While the Attorney General may have consistently and continually construed the statute as counsel states, proof of such a construction by the Attorney General is absent from the record before us. 13 We have explained, "Administrative construction cannot override the plain language of a statute. Where a statute is neither ambiguous nor of doubtful meaning, the rule that weight is to be given to an agency construction in determining the effect of the statute will not be applied." Bradshaw v. Oklahoma State Election Bd., 2004 OK 69, ¶ 6, 98 P.3d 1092, 1094. 14 The construction of an ambiguous and uncertain statute by a state agency must also be reasonable for a court to give the construction deference and great weight. Oral Roberts Univ. v. Okla. Tax Comm'n, 1985 OK 97, 714 P.2d 1013, 1015. See Independent Finance Institute v. Clark, 1999 OK 43, ¶ 13, 990 P.2d 845, 851 (deference given to the construction of a statute made by an agency charged with its enforcement is a rule of construction for ambiguous statutory language, and the deference is based upon an agency construction that is reasonable and not clearly wrong). 15 In R. R. Tway, Inc. v. Oklahoma Tax Comm'n, 1995 OK 129, n. 3, 910 P.2d 972, 976, we declined to give judicial deference to an agency's construction of a state statute. We observed that there was no evidence in the record showing the agency's consistent and continual construction of the statute by a published agency rule, or that the agency had construed the statute in some other manner that would give notice to the Legislature of the agency's actions. 16 34 O.S.Supp.1993 (D) (1) stated that: "Within five (5) business days after the filing of such copy and ballot title with the Attorney General, he shall, in writing, notify the Secretary of State whether or nor not the proposed ballot title is in legal form and harmony with the law. If the proposed ballot title is in harmony with the law the Attorney General shall so certify to the Secretary of State. Should such ballot title not be in proper form, in the opinion of the Attorney General, it shall be his duty, within ten (10) business days of determining that th proposed ballot title is not in proper form, to prepare and file a ballot title which does conform to the law; and" 17 Laws 1994, c. § 147, § 3, amending 34 O. S. Supp.1993 § 9, eff. May 3, 1994. 18 Laws 1994, c. § 147, § 3, amending 34 O. S. Supp.1993 § 9, eff. May 3, 1994, emphasis added. 19 Although doubt as to the meaning of a statute may be resolved by reference to its enacted history, Independent Finance Institute v. Clark, 1999 OK 43, ¶ 14, 990 P.2d at 851, our observation on the legislative history is not for the purpose of resolving doubt of concerning ambiguous language, but for the purpose of showing that the language which altered the time for calculating the Attorney General's duty to file a response to a ballot title is a plain and ordinary reading of the language and that the Attorney General's construction is not a reasonable alternative. 20 Berryman v. Bonaparte, 1932 OK 141, 11 P.2d 164, 167-168 ("A mere presumption of law applies only in the absence of evidence as to the fact, and flies out of the case upon the production of any evidence, but the presumption that public officials perform their duties casts the burden of proof upon the issue. We call attention to these matters in order that the learned counsel may not in the future become confused relative to general legal presumptions and the presumptions of law relative to public officials."). See also, State ex rel. Okla. Corp. Com'n v. McPherson, 2010 OK 31, ¶ 28, 232 P.3d 458, 465 ("But because of the presumption that officials will take proper actions subsequent to a demand letter, the taxpayer's [qui tam] interest does not come into being until the taxpayer shows that officials failed to take the proper actions after receiving the demand letter."); State ex rel. Haning v. Department of Public Welfare, 1952 OK 229, 245 P.2d 452, 455 ("The rule is well settled in this jurisdiction that in considering an action in mandamus against such public officials this court may exercise its judicial discretion in granting or denying the writ, and may in a proper case withhold the writ in anticipation of good faith performance of the declared statutory duty."). 21 25 O.S. 2011 § 23: "The word 'year' means a calendar year, and 'month,' a calendar month. Fractions of a year are to be computed by the number of months, thus: half a year is six (6) months. Fractions of a day are to be disregarded in computations which include more than one (1) day, and involve no question of priority." 22 25 O.S. Supp. 2012 § 82.1 states in part: "A. The designation and dates of holidays in Oklahoma shall be as follows: Each Saturday, Sunday, New Year's Day on the 1st day of January, Martin Luther King, Jr.'s Birthday on the third Monday in January, . . . ." "C. Any act authorized, required, or permitted to be performed on a holiday as designated in subsection A of this section may be performed on the next succeeding business day, and no liability or loss of rights of any kind shall result from such delay. . . . " 23 34 O.S.2001 § 9(D)(1) states in part: After the filing of the petition and prior to the gathering of signatures thereon, the Secretary of State shall submit the proposed ballot title to the Attorney General for review as to legal correctness. Within five (5) business days after the filing of the measure and ballot title, the Attorney General shall, in writing, notify the Secretary of State whether or not the proposed ballot title complies with applicable laws. 24 34 O.S. § 9(D)(1) states in part: "The Attorney General shall state with specificity any and all defects found and, if necessary, within ten (10) business days of determining that the proposed ballot title is defective, prepare and file a ballot title which complies with the law; . . . ." 25 The argument made by Proponents has some similarities to one we rejected in State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, 264 P.3d 1197. In Mothershed a party argued that failure to follow the "shall" language requiring an act of a public official/public body within a certain time divested that public body of jurisdiction to act. In the present case, Proponents argue that a public official's failure to observe a statutory time requirement has divested that official of jurisdiction to act. We explained in Mothershed that there was no legislative intent to create a jurisdictional time limit in a particular rule for Bar disciplinary procedure (at ¶ 62, 264 P.3d at 1221), and herein we similarly note that there is no legislative language or intent indicated by the plain language in 34 O.S. § 9 to remove the Attorney General from the ballot title procedure by an untimely filing made by the Attorney General. 26 We note that School District No. 61, Payne County, supra, is consistent with Castro v. Keyes, 1992 OK 92, 836 P.2d 1275, where parties argued that a county board of equalization lacked jurisdiction to adjudicate a timely filed taxpayer protest when the adjudication came after the statutory date for adjournment for the board. This Court rejected that argument and we reaffirmed the holding of Castro in both George L. Verity Management Development Corp. v. Keyes, 1992 OK 93, 836 P.2d 1279, and Oklahoma City Golf and Country Club v. Keyes, 1992 OK 94, 836 P.2d 1282. See Larry Jones Intern. Ministries, Inc. v. Means, 1997 OK 125, ¶ 7, 946 P.2d 669, 671. 27 State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 54, & nn. 59-63, & ¶ 62, 264 P.3d 1197, 1217, 1221. See also Baugh v. Little, 1929 OK 383, 282 P. 459, 460 ("It is well established, as a general rule, that jurisdiction once acquired is not defeated by subsequent events, . . . ."). 28 The nature of this time limit in 34 O.S.2001 §4 and whether it is mandatory is not before us in the present controversy. It is noted merely to show an example of the Legislature restricting a filing after a certain date. 29 See, e.g., McCathern v. City of Oklahoma City, 2004 61, ¶ 17, 95 P.3d 1090, 1097 ("We will not abridge governmental tort responsibility by legislative text that is ambiguous or silent."); Satellite Sys., Inc. v. Birch Telecom of Oklahoma, Inc., 2002 OK 61, ¶ 7, 51 P.3d 585, 588 (A legislative intention to abolish a common law right must be clearly and plainly expressed and there is a presumption that favors preservation of common-law rights). 30 Matter of Estate of Speake, 1987 OK 61, 743 P.2d 648, 652. 31 In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 649 P.2d 545, 553 ("when questions of a general public nature are involved, which affect the state at large, the people of the state become indirect parties and their interests must be protected to prevent a possible 'practical injustice' even if the person who might have objected is silent."); State ex rel. Freeling v. Lyon, 1917 OK 229, 165 P. 419, 420 (A matter that affects the rights of the citizens of the State is publici juris.); Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073 (An adjective-law barrier in a private-law original jurisdiction action will not hinder the court from giving adequate relief in an original jurisdiction proceeding that is publici juris.). 32 When the parties' briefs present a publici juris issue and no additional facts are necessary for its adjudication, the Court possesses the judicial discretion to determine an issue of law presented by those briefs. State v. Torres, 2004 OK 12, ¶ 7, 87 P.3d 572, 578; City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶ 30 133 P.3d 281,299-300 (Edmondson, J., Concurring). 33 Terry v. Bishop, 2007 OK 29, ¶ 9, 158 P.3d 1067, 1070-1071. 34 Okla. Const. Art. 5 § 1: "The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature." 35 In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶ 2, 164 P.3d 125, 126. 36 Okla. Const. Art. 5 § 3 states in part: "The Legislature shall make suitable provisions for carrying into effect the provisions of this article." 37 In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, ¶ 17,155 P.3d 32, 40. 38 Gulfstream Petroleum Corp. v. Layden, 1981 OK 56, 632 P.2d 376, 379 (principle applied to whether entry of a spacing order was a mere procedural step or a mandatory jurisdictional step in the process of entering a pooling order). 39 U.C. Leasing, Inc. v. State ex rel. State Bd. of Public Affairs, 1987 OK 43, 737 P.2d 1191, 1196. 40 Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 24, 87 P.3d 598, 604 ("A typical case for mandamus has five elements: (1) The party seeking the writ has no plain and adequate remedy in the ordinary course of the law, (2) The party seeking the writ possesses a clear legal right to the relief sought, (3) The respondent (defendant) has a plain legal duty regarding the relief sought, (4) The respondent has refused to perform that duty, and (5) The respondent's duty does not involve the exercise of discretion."); In the Matter of B.C., 1988 OK 4, 749 P.2d 542, 544 (Mandamus will not usually control the substantive content of an official's decision within the discretion of that official in the performance of a duty. But when the duty requires an exercise of discretion and the official has not performed, mandamus will issue to require the official to actually exercise the required discretionary act.). 41 34 O.S.2011 § 24: "The procedure herein prescribed is not mandatory, but if substantially followed will be sufficient. If the end aimed at can be attained and procedure shall be sustained, clerical and mere technical errors shall be disregarded." 42 Cf. City of Tulsa v. Whittenhall, 1929 OK 122, 282 P. 322 (notice of claim filed on thirty-first day was in substantial compliance with requirement for notice within thirty days because plaintiff was unable to provide notice within the thirty-day period). 43 See the discussion and application of a substantial compliance standard in Henderson v. Maley, 1991 OK 8, 806 P.2d 626, as to both (1) the issues in that controversy and (2) the standard applied in a prohibition proceeding, Looney v. County Election Board of Seminole County, 1930 OK 461, 293 P. 1056. Henderson, 806 P.2d at 630, 632. 44 In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, 927 P.2d 558, 567 (The terms of § 3 require that the petition contain a simple statement of the gist of the proposition, which is in contrast to § 9 which provides that the ballot title, in no more than 150 words, explain the effect of the proposition: "The purpose of these two statutes is to prevent fraud, deceit or corruption in the initiative process."). 45 34 O.S.2011 § 11 quoted infra at ¶ 37. 46 See 34 O.S.2011 § 10 (A) quoted infra at ¶ 37. 47 See 34 O.S.2011 § 11 quoted infra at ¶ 37. 48 Oklahoma Supreme Court Rule 1.194: " Proceedings to protest or to object to initiative and referendum petitions. Proceedings in the Supreme Court to determine protests or objections to initiative and referendum petitions shall be commenced and proceed in accordance with the procedures set out in 34 O.S. § 8. The proceeding shall be treated as an original action and the parties shall be afforded a trial de novo. In re Initiative Petition 281, State Ques. No. 441, 1967 OK 230, 434 P.2d 941. If factual issues are raised, the Court may assign the matter to a referee. The Court may issue directions when the procedure is not set out in 34 O.S. § 8, in this Rule, or in Part VI of these Rules." 49 34 O.S.2011 § 11, states in part that:" . . . Other procedure upon such appeals shall be the same as is prescribed for appeals from petitions filed as set forth in Section 8 of this title." 50 Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, ¶ 1, 184 P.3d 496. See also Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, ¶ 19, 981 P.2d 1253, 1261 (All legislative enactments in pari materia are to be interpreted together as forming a single body of law that will fit into a coherent symmetry of legislation.). 51 State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., 2003 OK 79, ¶ 29, 78 P.3d 83, 92. See Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (The burden to show any particular fact or claim rests upon the party asserting such fact or claim as part of that party's action or defense). The phrase "burden of proof" is often used to refer to both (1) a burden of persuasion (which is a duty or obligation of establishing in the mind of the trier of fact a conviction on the ultimate issue), and (2) a burden to produce evidence in support of a party's claim or an affirmative defense. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 272-275, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994); Johnson v. Board of Governors of Registered Dentists of the State of Okla., 1996 OK 41, n. 3, 913 P.2d 1339, 1350 (Opala, J., with Kauger, V.C.J. Concurring). 52 Oklahoma Supreme Court Rule 1.194, note 48, supra. 53 Powers v. District Court of Tulsa County, 2009 OK 91, n. 23, 227 P.3d 1060, 1070. 54 S. W. v. Duncan, 2001 OK 39, ¶ 31, 24 P.3d 846, 857 (in an original jurisdiction proceeding need not consider a claim that is unsupported by convincing argument or authority unless the claim is facially apparent without the need for legal research). See also In re Initiative Petition No. 249, State Question 349, 1950 OK 238, 222 P.2d 1032, 1034 (pursuant to 34 O.S.1941 § 8 in an initiative petition appeal the hearing in this Court is a trial de novo in which the burden rests upon the protestant to establish that party's various contentions). 55 In re Initiative Petition No. 363, State Question 672, 1996 OK 122, 927 P.2d 558, 571. 56 In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, 813 P.2d 1019, 1032. 57 In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, 879 P.2d 810, 820. 58 In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d at 819. 59 In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d at 569. 60 68 O.S.2011 § 1203, states in part that: "There is hereby levied and assessed a franchise or excise tax upon every corporation, association, joint-stock company and business trust organized under the laws of this state . . . ." 68 O.2011 § 1208 (A) & (B): "A. It is hereby declared to be the purpose of Section 1201 et seq. of this title to provide for revenue for general governmental functions of the State of Oklahoma. B. All monies collected under Section 1201 et seq. of this title shall be transmitted monthly to the State Treasurer of the State of Oklahoma to be placed to the credit of the General Revenue Fund of the state, to be paid out only pursuant to direct appropriations of the Legislature." 61 See, e.g., Okla. Const. Art. 10 § 23: "To ensure a balanced annual budget, pursuant to the limitations contained in the foregoing, procedures are herewith established as follows: 1. Not more than forty-five (45) days or less than thirty-five (35) days prior to the convening of each regular session of the Legislature, the State Board of Equalization shall certify the total amount of revenue which accrued during the last preceding fiscal year to the General Revenue Fund and to each Special Revenue Fund appropriated directly by the Legislature, and shall further certify amounts available for appropriation . . . . 4. Surplus funds or monies shall be any amount accruing to the General Revenue Fund of the State of Oklahoma over and above the itemized estimate made by the State Board of Equalization. . . ." 62 In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, 879 P.2d 810, 818. 63 In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d at 818. 64 In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, 927 P.2d 558, 567 (The terms of § 3 require that the petition contain a simple statement of the gist of the proposition, which is in contrast to § 9 which provides that the ballot title, in no more than 150 words, explain the effect of the proposition: "The purpose of these two statutes is to prevent fraud, deceit or corruption in the initiative process.") (emphasis added). 65 34 O.S.2011 § 2 states in part that: "The question we herewith submit to our fellow voters is: Shall the following bill (or proposed amendment to the Constitution or resolution) be approved? (Insert here an exact copy of the title and text of the measure.)" 66 34 O.S.2011 § 3 (emphasis added): "Each initiative petition and each referendum petition shall be duplicated for the securing of signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheets for signatures is hereinafter termed a pamphlet. On the outer page of each pamphlet shall be printed the word "Warning", and underneath this in ten-point type the words, "It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter". A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. Not more than twenty (20) signatures on one sheet on lines provided for the signatures shall be counted. Any signature sheet not in substantial compliance with this act shall be disqualified by the Secretary of State." 67 34 O.S.2011 § 10 (A): "A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) days after the same is published by the Secretary of State as provided for in subsection B of Section 8 of this title, appeal to the Supreme Court by petition in which shall be offered a substitute ballot title for the one from which the appeal is taken. Upon the hearing of such appeal, the court may correct or amend the ballot title before the court, or accept the substitute suggested, or may draft a new one which will conform to the provisions of Section 9 of this title." 68 34 O.S.2011 § 9(B) states in the first sentence of the paragraph: "The parties submitting the measure shall also submit a suggested ballot title which shall be filed on a separate sheet of paper and shall not be deemed part of the petition." 69 34 O.S.2001 § 8 (E) states in part: "Within ninety (90) days after such filing of an initiative petition or determination of the sufficiency of the petition by the Supreme Court as provided in this section, whichever is later, the signed copies thereof shall be filed withe the Secretary of State . . . ." 70 34 O.S.2011 §§ 2, 3 supra, at notes 65 and 66. 71 Additional signature sheets "shall not be accepted [by the Secretary of State] after 5:00 p.m. on the ninetieth day." 34 O.S.2011 § 4, explanatory phrase added. 72 This Court may set the time for a party to file a petition for rehearing. Fent v. Henry, 2011 OK 10, ¶ 23, 257 P.3d 984, 995.

424f2868-31e2-4068-80fe-cf41884597d8

Tulsa Stockyards, Inc. v. Clark

oklahoma

Oklahoma Supreme Court

TULSA STOCKYARDS, INC. v. CLARK2014 OK 14Case Number: 112240Decided: 03/11/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. TULSA STOCKYARDS, INC., Petitioner, v. JASON CLARK, AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF COMPSOURCE OKLAHOMA, Respondent. ORIGINAL PROCEEDING FOR DECLARATORY RELIEF AND WRIT OF PROHIBITION OR MANDAMUS ¶0 In this original proceeding, petitioner seeks declaratory relief and an extraordinary writ. Petitioner challenges the CompSource Mutual Insurance Company Act, 2013 Okla. Sess. Laws, ch. 254 (codified at 85 O.S.Supp.2013, §§ 375.1 et seq.), as being contrary to the Oklahoma Constitution, Article X, § 15(A) (prohibiting gifts of public money), Article II, § 15 (prohibiting interference with contracts), and Article V, § 55 (prohibiting money being paid out of the State Treasury except by appropriation). The challenged legislation requires that CompSource Oklahoma be restructured to do business as a domestic mutual insurer under the name of CompSource Mutual Insurance Company effective January 1, 2015, and vests all of CompSource Oklahoma's assets in CompSource Mutual Insurance Company. We previously assumed original jurisdiction. EXTRAORDINARY WRIT DENIED. R. Stratton Taylor and Mark H. Ramsey, Claremore, OK, for petitioner; Robert G. McCampbell, Klint A. Cowan, and Travis V. Jett, Oklahoma City, OK, for respondent; Patrick R. Wyrick, Solicitor General, and Cara N. Rodriguez, Assistant Solicitor General, Oklahoma City, OK, for the Oklahoma Attorney General; Sam Fulkerson and Elizabeth Bowersox, Oklahoma City, OK, for the State Chamber of Commerce, amicus curiae. TAYLOR, J. ¶1 In this original proceeding, Tulsa Stockyards, Inc. (petitioner) challenges the constitutionality of the CompSource Mutual Insurance Company Act (Act), 2013 Okla. Sess. Laws, ch. 254 (codified at 85 O.S.Supp.2013, §§ 375.1 et seq.). The Act requires that CompSource Oklahoma (CompSource) be restructured to do business as a domestic mutual insurer without capital stock or shares under the name of CompSource Mutual Insurance Company (CompSource Mutual) effective January 1, 2015. Petitioner contends that CompSource is a state agency and its money and other assets, valued at approximately Two Hundred Sixty-five Million Dollars ($265,000,000.00), are assets of the people of Oklahoma. It contends that converting CompSource from a department of this State to an independent, licensed mutual insurance company without provision for the State to retain ownership of CompSource's assets is contrary to the prohibition against gifts of public money, Okla. Const., art. X, § 15(A); the prohibition against interference with contracts, Okla. Const., art. II, § 15; and the prohibition against money being paid out of the State Treasury except by appropriation, Okla. Const., art. V, § 55.1 CompSource responds that its money and other assets belong to its insured employers and their employees and that its money is not State money under Moran v. State ex rel. Derryberry, 1975 OK 69, 534 P.2d 1282. ¶2 We assumed original jurisdiction to revisit the nature and ownership of CompSource's money and other assets, to consider the continued efficacy of our Moran opinion, and to determine whether our constitution prohibits the Oklahoma Legislature from transferring CompSource's money and other assets to a domestic mutual insurer. We conclude that CompSource's money and other assets are held in trust for the benefit of the employers and employees protected by the insurance issued by CompSource, our Moran opinion remains sound law, and the Oklahoma Constitution does not prohibit the Legislature from placing CompSource's money and other assets in trust with a domestic mutual insurer. I. COMPSOURCE OKLAHOMA SUCCESSOR TO THE STATE INSURANCE FUND ¶3 The Oklahoma Legislature created the State Insurance Fund (Fund) in 1933 to provide workmen's compensation insurance to public employers and to private employers who were unable to secure insurance from private insurers. 1933 Okla. Sess. Laws, ch. 28 (most recently codified at 85 O.S.1991, § 131, et seq.). The Legislature established the Fund as a revolving fund2 in the State Treasury that consisted of any specific appropriation3 made to it, all insurance premiums received, and all property, securities, and interest acquired through the use of the money in the revolving fund. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 1(a) (amended by 1937 Okla. Sess. Laws, ch. 72, art. 3, § 3(a) and codified at 85 O.S.1941, § 131(a)). The Legislature directed that the Fund's money shall be applicable to the payment of losses sustained on account of the insurance contracts issued by the Fund and to the payment of expenses to administer the Fund. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 1(b) (amended by 1937 Okla. Sess. Laws, ch. 72, art. 3, § 3(b) and codified at 85 O.S.1941, § 131(b)). The Legislature made the State Treasurer the custodian of all monies in the Fund and required a separate bond from the State Treasurer for the faithful performance of the duties of custodian of the Fund. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 5 (codified at 85 O.S.1941, § 135). ¶4 From its inception, state officials controlled the Fund expressly without liability on the part of the state beyond the money in the revolving fund. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 1(a) (amended by 1937 Okla. Sess. Laws, ch. 72, art. 3, § 3(a) and codified at 85 O.S.1941, § 131(a)). Initially, the State Industrial Commission administered the Fund. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 2. In 1937, the Legislature created a Board of Managers to supervise the operation of the Fund and authorized the Board of Managers to appoint a State Insurance Fund Commissioner to administer the Fund. 1937 Okla. Sess. Laws, ch. 72, art. 3, §§ 1 and 2 (codified at 85 O.S.1941, §§ 131a and 131b). The five members of the Board of Managers were the Governor, the Chairman of the State Industrial Commission, the Secretary of the State Insurance Board, the Insurance Commissioner, and the State Highway Commissioner.4 Id. § 131a. The Legislature authorized the Board of Managers to fix the premium rates to be charged by the Fund for insurance. 1937 Okla. Sess. Laws, ch. 72, art. 3, § 4 (codified at 85 O.S.1941, § 132). The Legislature authorized the State Insurance Fund Commissioner to conduct the insurance business as a private carrier might do, id., but limited the Commissioner's power to refuse to issue insurance. 85 O.S. 1941, § 134(2) (currently codified at 85 O.S. 2011, § 382(A)(2)). The Legislature also authorized the Commissioner to sue and be sued, to make and enter into contracts of insurance, and to invest and reinvest monies belonging to the Fund. 1937 Okla. Sess. Laws, ch. 72, art. 3, § 5 (codified at 85 O.S.1941, § 133). The Legislature expressly directed that the Fund shall be fairly competitive with other insurance carriers and that the Fund shall become neither more nor less than self-supporting. 1933 Okla. Sess. Laws, ch. 28, art. 2, § 1(c) (amended by 1937 Okla. Sess. Laws, ch. 72, art. 3, § 3(c) and codified at 85 O.S.1941, § 131(c)). ¶5 The purpose of the Fund and the duties, responsibilities, and restrictions imposed upon the Commissioner, now the President and Chief Executive Officer,5 and the Board of Managers were prescribed in the 1941 codification of the workers' compensation statutes. Even though the statutes have since been amended many times, the substance of the 1941 codification has remained the same. Importantly, the legislative application of the money in the Fund to the payment of losses sustained on account of the insurance policies and to the payment of expenses to administer the Fund has remained the same. 85 O.S.1941, §§ 131(b) and 139 (currently codified at 85 O.S.2011, §§ 375 and 389). In 2001, the Legislature amended §§ 131, 131a and 131b to change the Fund's name to CompSource Oklahoma. 2001 Okla. Sess. Laws, ch. 378, §1. In renaming the Fund, the Legislature made no changes to the operation and management of and expenditures from the revolving fund. The most recent codification of the CompSource statutes is 85 O.S.2011, §§ 375 - 401. In section 53 of the challenged Act, the Legislature has directed the repeal of 85 O.S.2011, §§ 375 - 401, with exceptions.6 2013 Okla. Sess. Laws, ch. 254, § 53. Section 53 will not be effective until January 1, 2015. Id. § 55. ¶6 Our early jurisprudence recognized that the Fund, a statutory creature engaged in the insurance business under the control of state officials, was a department of the State engaged in a private enterprise to fulfill a public need for workers' compensation insurance. In O.K. Constr. Co. v. Burwell, 1939 OK 248, 93 P.2d 1092, the Fund appealed an award of the State Industrial Commission but did not post an appeal bond. The Court viewed the Fund as a department of the State and did not require an appeal bond. It is observed that no legislative, judicial, or governmental functions are authorized by the terms of the act, but the powers granted are administrative in character and may be terminated at any time at the will of the Legislature. The powers and duties are exercised by elected and appointed state officers who perform said functions without added compensation. We are not here dealing with an independent corporate entity or a governmental agency created by law and vested with a measure of governmental power, but a mere department created for a fixed and limited purpose, over which the state, through its Legislature and its officials, retains absolute domination and control. The State Insurance Fund, therefore, is a department of the state of Oklahoma within the meaning of that term as used in section 514, supra, and is not required to give an appeal bond. Id. at ¶10, 93 P.2d at 1094. ¶7 However in deciding whether the statute of limitations ran against the Fund in a contract action, the Court viewed the Fund as a private insurer. State Ins. Fund v. Taron, 1958 OK 282, 333 P.2d 508. The Taron Court ruled that the Fund's suit for indemnity arose "out of the management and administration of its insurance business" and the "statutes of limitations therefore apply to it to the same extent as to any other private insurance carrier." Id. at ¶15, 333 P.2d at 513. ¶8 The Court extended tort sovereign immunity to the Fund in State v. District Court of Oklahoma County, 1954 OK 171, 278 P.2d 841, a suit filed against the Fund for damages resulting from an automobile accident. The Court recognized that the Fund was created for the specific purposes of protecting employers against the workmen's compensation liability and of paying injured employees the compensation due them and reasoned that allowing "the Fund to be sued in tort would be to take the money specifically set aside to pay injured workmen" which could easily bankrupt the Fund. Id. at ¶10, 278 P.2d at 843. Short-lived, the District Court of Oklahoma County opinion was overruled in State v. Bone, 1959 OK 135, 344 P.2d 562, 563: Syllabus by the Court, No. 1: 1. The legislature of this state, by the enactment of 85 O.S.1951, Section 133 [sue and be sued provision], waived the sovereign immunity of the State Insurance Fund from all suits arising out of any act, deed, matter or things made, omitted, entered into, done or suffered in connection with the State Insurance Fund in the administration and management of the business and affairs of said Fund; and, the Fund, while engaged in the insurance business, a purely business enterprise, as distinguished from a mandatory duty or governmental function, assumes the obligations and liabilities incident to the business the same as when carried on by private corporations or individuals, including actions for damages caused by one of their employee's negligence in driving his car while on a mission for the Fund. In applying this rule, we overrule State ex rel. State Ins. Fund v. District Court of Oklahoma County, Okl., 278 P.2d 841, in so far as it conflicts with our holding herein. ¶9 After Bone, this Court did not extend sovereign immunity to the Fund until we determined that the definition of "agency" in the Governmental Tort Claims Act, 51 O.S.1991, §§ 151, et seq., included the Fund and superceded the Bone pronouncement. Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276. Recognizing the governmental entity/private enterprise characteristics of the Fund (SIF), Fehring explained: Further, although State ex rel. State Insurance Fund v. Bone, 1959 OK 135, 344 P.2d 562 held - prior to the GTCA's enactment - that SIF was not within the traditional immunity afforded the sovereign because it was an agency or instrumentality of the State engaged in a business enterprise, as distinguished from a purely governmental function, Bone was decided when a distinction was made between governmental and proprietary functions of governmental entities for sovereign immunity purposes. See Vanderpool v. State, 1983 OK 82, 672 P.2d 1153 (general discussion of governmental/proprietary function issue) and Hershel v. University Hospital Foundation, 1980 OK 60, 610 P.2d 237, 242 (recognizing the Court's treatment of SIF in Bone involved a holding that SIF was a State enterprise engaged in a proprietary function not entitled to sovereign immunity). The previous distinction existing in sovereign immunity law by virtue of a State entity being engaged in a proprietary function - rather than a governmental one - no longer applies because, under 51 O.S. 1991, § 166, the GTCA's provisions are applicable to both governmental and proprietary functions of State entities within its sphere. Id. at ¶21, 19 P.3d at 282-283 (footnote omitted). ¶10 The general purpose of the Fund, now CompSource, is to insure employers against liability for workers' compensation claims and to assure employees entitled to benefits under our workers' compensation laws receive such benefits through the insurance. The Fund was and is an insurer of last resort for those employers unable to obtain insurance from a private insurer. From its beginning, the Fund has been recognized as a nonprofit department engaged in the private insurance business under the control of state officials to fulfill a public need for workers' compensation insurance. II. MORAN V. STATE EX REL. DERRYBERRY 1975 OK 69, 534 P.2d 1282. ¶11 In 1974, the Oklahoma Legislature directed the State Insurance Fund Commissioner to liquidate assets and deposit surplus money in the amount of Four Million Dollars in the Fund to be appropriated by the Legislature. 1974 Okla. Sess. Laws, ch. 209, §§ 1 and 2 (codified at 85 O.S.Supp.1974, §§ 152 and 153). The 1974 appropriation to the State Board of Education included an appropriation of Four Million Dollars from the Fund. 1974 Okla. Sess. Laws, ch. 234, § 4. John C. Moran and other employers insured by the Fund sued to enjoin the liquidation of the Fund's assets. The district court declared both legislative acts to be unconstitutional and enjoined the State Insurance Fund Commissioner and the Board of Managers of the Fund from liquidating the assets. The Oklahoma Attorney General appealed. In affirming the district court's declaratory judgment, this Court examined the legal status of the Fund and the legal status of the money and other assets of the Fund. Moran v. State ex rel. Derryberry, 1975 OK 69, 534 P.2d 1282. ¶12 As to the legal status of the Fund, first the Moran opinion considered the statutes creating the Fund: Title 85 O.S. 1971 § 131, provides that the Fund shall be administered "without liability on the part of the State beyond the amount of said Fund" . . .; that it shall be a Revolving Fund consisting of premiums received, all property and securities acquired through use of its moneys, and all interest earned upon its moneys; and that "Said Fund shall be fairly competitive with other insurance carriers and it is the intent of the Legislature that said Fund shall become neither more nor less than self-supporting." Id. at ¶13, 534 P.2d at 1284. Secondly, the Moran opinion considered the extant jurisprudence and in particular, the Bone opinion: In State v. Bone, Okl., 344 P.2d 562, we held the State Insurance Fund, as an agency or instrumentality of the State, did not have the immunity of the State from suit, and could be sued and held liable for damages because of negligence of its employee in operating a motor vehicle. Therein we stated at page 568: "* * * * Under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the Fund. Independent control exists in the Fund to operate and maintain an insurance company in the same manner as may be done by any privately owned insurance company. These factors permit it (the Fund) to be regarded as an independent business enterprise or entity." And on page 569: "* * * * we now hold that the State Insurance Fund is a business enterprise as distinguished from purely governmental activities, and tort liability attaches and may be adjudicated pursuant to the consent statute, Sec. 133, 85 O.S. 1951, supra. In creating and undertaking the operation of the State Insurance Fund, it is reasonable to think that the same responsibilities were intended to be assumed as ordinary insurance companies are obliged to assume." Id. at ¶24, 534 P.2d at 1286. ¶13 Guided by the Bone opinion, Moran concluded that the Fund is a non-profit and non-loss insurer and that the State may not profit from the Fund: These statements [in Bone] i.e., "Independent Control," and "operate and maintain in the same manner as privately owned insurance company," and "independent business," and "a business enterprise as distinguished from purely governmental activities," when joined with the legislative injunction "that said Fund shall become neither more nor less than self-supporting" (§ 131, supra), compel the conclusion that the Legislature did not intend for the State to gain a pecuniary profit from the operation, nor to gain by reason of an unexpected "windfall" in the nature of an alleged surplus or excess reserve, at the expense of the premium-paying employers or the employee beneficiaries, in a declared non-profit and non-loss insurance activity. That such is the clear majority view is shown by the authorities and decisions. There is no question that should the State Insurance Fund become insolvent or fail to pay a workmen's compensation award, the employers insured by the Fund would be called upon to pay the award according to its terms. Atlas Wiring Co. v. Dorchester, 168 Okl. 337, 32 P.2d 913, and Rucks-Brandt Const. Corporation v. Silver, 194 Okl. 324, 151 P.2d 399. It is plain the insured employer is interested in seeing the Fund maintains reserves sufficient to pay any claims. It is also clear the employees of such employer have an interest in the maintenance of the reserves. Id. at ¶¶25 and 26, 534 P.2d at 1286. ¶14 As to the legal status of the money in the revolving fund, the Moran Court turned to the plain meaning of the language in 85 O.S.1971, § 131(b) that the "Fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of expenses in the manner provided in this Act." Id. at ¶32, 534 P.2d at 1287. The Moran Court concluded that the Fund's monies are held in trust for the policy-holding employers and their employees: It is our conclusion the funds of the State Insurance Fund are not State funds and do not belong to the State, that such funds are trust funds for the benefit of employers and employees, and are not available for the general or other purposes of the State, nor are they subject to appropriation by the Legislature for purposes other than those contemplated by the State Insurance Fund Act. Id. at ¶34, 534 P.2d at 1288. ¶15 The Moran Court ruled that the challenged legislation interfered with the Fund's insurance contracts: In Baker v. Tulsa Building & Loan Ass'n, 179 Okl. 432, 66 P.2d 45, 46, we stated the well established rule of law as follows: "The existing statutes and the settled law of the land at the time a contract is made become a part of it and must be read into it." Therein we further stated: "A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right, and may be created either by common law, by statute, or by contract. And when it has once been created, and has become absolute, it is protected from the invasion of the Legislature by those provisions in the Constitution which apply to such rights." Article 2, § 15, Constitution of Oklahoma, provides that no law impairing the obligation of contracts shall ever be passed. The 1974 legislative laws, 85 O.S.Supp. 1974 §§ 152 , 153 , and § 4 of Senate Bill 434, Session Laws 1974, do impair the insurance contracts and rights of Appellees thereunder, and are unconstitutional and void. Id. at ¶¶37-39, 534 P.2d at 1288. ¶16 The Moran opinion has been often accepted as authority. This Court followed Moran in deciding that the Fund (SIF) was protected by the Governmental Tort Claims Act: SIF's purpose, powers, duties and structure are primarily set out in 85 O.S. 1991, § 131 et seq., as amended - part of our workers' compensation laws. It was created by 1933 legislation [O. K. Constr. Co. v. Burwell, 1939 OK 248, 93 P.2d 1092, 1093] to satisfy the need for workers' compensation insurance for employers unable to procure coverage from private insurance companies and in high risk industries. Moran v. State ex rel. Derryberry, 1975 OK 69, 534 P.2d 1282, 1284. Today, SIF's general purpose is simply to insure employers against liability for workers' compensation claims and to assure employees entitled to benefits under our workers compensation laws that they receive such benefits through the insurance. 85 O.S. Supp. 1995, § 131. SIF provides such insurance to both private and public employers. Also, SIF's governing statutes plainly indicate, although it is to be fairly competitive with private insurance carriers providing such insurance, SIF is generally a non-profit endeavor [§ 131(c)], and its ability to decline to insure an employer for purposes of the employer's workers' compensation liability is restricted. 85 O.S. Supp. 1996, § 134(A)(2). Fehring v. State Ins. Fund, 2001 OK 11 at ¶11, 19 P.3d at 280 (footnote omitted). ¶17 In deciding the Fund was an agency under the Governmental Tort Claims Act, Fehring recognized that the State Insurance Fund Commissioner is a state officer, citing 74 O.S.Supp.1994, § 85.29; the Fund's personnel are under the Merit System of Personnel Administration, citing 74 O.S.Supp.1994, § 840-5.10; and supervision of the Fund is conducted by state officers or their appointees on the Board of Managers. Even so, Fehring did not disturb the Moran conclusion that the Fund's monies are trust funds: Although this Court has recognized that generally the funds of SIF are not State funds, but are trust funds held for the benefit of the employers/employees protected by the insurance issued by SIF to provide coverage in conformity with our workers' compensation laws [Moran v. State ex rel. Derryberry, supra], the Court has, nonetheless, unequivocally held SIF is a department of the State, over which the State, through legislative enactment, wields absolute control of its functions, powers and duties. O. K. Constr. Co. v. Burwell, supra, 93 P.2d at 1094. . . . 2001 OK 11 at ¶17, 19 P.3d at 281 (footnote omitted). ¶18 This Court relied on Moran in deciding that the funds in the Petroleum Storage Tank Release Indemnity Fund belong to the State of Oklahoma.7 State ex rel. Wright v. Okla. Corporation Comm'n, 2007 OK 73, 170 P.3d 1024. The Oklahoma Court of Criminal Appeals relied on Moran in deciding that the Fund's monies are not public funds for purposes of criminal prosecution for making false claims against the State. State v. Young, 1999 OK CR 14, 989 P.2d 949. The Oklahoma Attorney General relied on Moran in its opinion that the Fund's monies are not public funds for purposes of the prohibition against an officer receiving benefit from the use of public funds in Art. X, § 11, Okla. Const. 2011 OK AG 14. ¶19 Oklahoma law is clear that CompSource and its predecessor were created to conduct insurance business for employers as a private carrier might do so as to be fairly competitive with private insurance carriers and to be nothing more than self-supporting. Oklahoma law is also clear that CompSource's monies were and are generated from the sale of workers' compensation insurance in accordance with the workers' compensation statutes and from the investment of such money and that CompSource's monies are held in trust for the benefit of the employers and employees protected by the insurance issued by CompSource. The monies in the revolving fund of the Fund and CompSource have not been assigned the legal status of State funds even though the Fund and CompSource have been assigned the legal status of State entities controlled by state officials. ¶20 Zaloudek Grain Co. v. CompSource Oklahoma, 2012 OK 75, ¶¶13 and 14, 298 P.3d 520, 525, recognized this paradox. In addressing the issue of whether CompSource was subject to the requirements in 36 O.S.2001, § 3639 when it canceled its workers' compensation policy, Zaloudek revisited the 1933 legislation and early jurisprudence and made the following observations: The State Insurance Fund (Fund) was created in 1933. CompSource is the successor to the Fund. The Fund was created to be a "revolving fund" for the purpose of insuring employers against liability for compensation under Oklahoma's workers' compensation laws. CompSource has been described by this Court as not being "an independent corporate entity or a governmental agency created by law and vested with a measure of governmental power, but a mere department created for a fixed and limited purpose, over which the state, through its Legislature and its officials, retains absolute domination and control." CompSource's employees are state employees and the President and Chief Executive Officer's salary is set by statute. It is a state department created for the purpose of insuring employers against liability for compensation pursuant to the Workers' Compensation Code and is required to be "fairly competitive with other insurance carriers." It is not an incorporated stock insurer, an incorporated mutual insurer, a mutual benefit association, a nonprofit hospital service and medical indemnity corporation, a farmers mutual fire insurance association, a Lloyd's association nor a reciprocal insurer. The Fund/CompSource has been in existence for almost eighty years and yet the legislature has not added it to the list of entities in the Insurance Code's general definition of "insurer." . . . 2012 OK 75 at ¶¶13 and 14, 298 P.3d at 525 (footnote omitted). ¶21 Petitioner contends that in the nearly four decades after Moran, the law has changed to recognize the Fund/CompSource's sovereign immunity, to make the Fund/CompSource accountable under the merit system of personnel, to delegate to the Fund/CompSource responsibility for the Multiple Injury Trust Fund, and to expend state funds for the Fund/CompSource's surety bonds. These changes, however, do not alter the nature of the money and assets held in trust for the employers insured by CompSource and their employees. Having revisited the nature and ownership of CompSource's money, we find our Moran opinion remains sound. Moran is controlling precedent on the issue of the legal status of the Fund/CompSource as a department created by state statute for the purpose of insuring employers against liability for compensation pursuant to the workers' compensation law and the legal status of the Fund/CompSource's money as trust funds for the benefit of the insured employers and employees. Accordingly, we reaffirm Moran's conclusions that the monies and other assets of the State Insurance Fund, now CompSource, are not State funds and do not belong to the State and that those monies and other assets are held in trust for the benefit of the insured employers and employees. III. THE COMPSOURCE MUTUAL INSURANCE COMPANY ACT 2013 OKLA. SESS. LAWS, CH. 254 ¶22 The challenged Act, CompSource Mutual Insurance Company Act, 2013 Okla. Sess. Laws, ch. 254 (codified at 85 O.S.Supp.2013, §§ 375.1 et seq.), mandates that CompSource transition to a domestic mutual insurer, CompSource Mutual Insurance Company, effective January 1, 2015. The Act requires the Insurance Commissioner to approve articles of incorporation for CompSource Mutual and to issue a certificate of authority not later than August 1, 2014, the certificate to become effective January 1, 2015. Id. § 375.3(A). Subsection 375.3(B) requires CompSource Mutual to be a financially independent, nonprofit corporation providing competitively-priced workers' compensation and related coverages for the benefit of Oklahoma citizens. Subsections 375.3(E), (F), and (G) require CompSource Mutual to be an insurance carrier under the Workers' Compensation Code and Title 36 of the Oklahoma Statutes with some exceptions for a period of three years. Subsection 375.3(H) provides that CompSource Mutual shall not be considered a state agency, public body, department, or public trust within the Executive Branch of State Government.8 Subsection 375.3(I) states that CompSource Mutual: 1. Shall be organized and operated under Oklahoma law, but be independent of the State of Oklahoma; 2. Shall provide workers' compensation insurance to any employer in Oklahoma which seeks such insurance and meets other reasonable requirements relating thereto; 3. Shall not be permitted to dissolve; and 4. Shall have a majority of the Board of Directors or oversight body of such organization appointed by the Governor or legislative officers as specified in Section 4 of this act. ¶23 CompSource Mutual's Board of Directors shall have supervision over the administration and operation of CompSource Mutual, id. § 375.6, and shall have full power to set actuarially sound rates to be charged for insurance for a period of three years. Id. § 375.7. The Board of Directors shall have ten members including the Lieutenant Governor or a designee, State Auditor and Inspector or a designee, one person appointed by the Governor, one person appointed by the Speaker of the House of Representatives, one member appointed by the President Pro Tempore of the Senate, and four persons elected by the policyholders of CompSource Mutual. Id. § 375.4. CompSource Mutual's board members, Chief Executive Officer, and other officers and employees will not be personally liable for any act performed in their "official capacity in good faith and without intent to defraud." Id. § 375.8. ¶24 CompSource Mutual shall have the legal right to sue and be sued, id. § 375.9; shall be subject to the premiums tax,9 id. § 375.10(A); and shall be protected by the Oklahoma Property and Casualty Insurance Guaranty Association. Id. § 375.10(B). Subsections 375.12(A) and (B) provide that CompSource Mutual shall be a continuation of CompSource and all of CompSource's assets shall vest in CompSource Mutual on January 1, 2015: A. All revenues, monies, and assets of CompSource Mutual Insurance Company belong solely to the Company and shall be governed by the laws applicable to domestic mutual insurance companies. The state covenants with the policyholders of the Company, persons receiving workers' compensation benefits, and the Company's creditors that the state will not borrow, appropriate, or direct payments from those revenues, monies, or assets for any purpose. The state has no liability or responsibility to the policyholders, persons receiving workers' compensation benefits, or the creditors of the Company if the Company is placed in conservatorship or receivership, or becomes insolvent. B. CompSource Mutual Insurance Company may exercise all the rights, privileges, powers, and authority of any other mutual insurance company organized to transact workers' compensation insurance business in this state, subject to the requirements of Title 36 of the Oklahoma Statutes. Effective January 1, 2015: 1. The Company shall be considered to be a continuation of CompSource Oklahoma as it existed prior to this act; and 2. As a continuation of CompSource Oklahoma, the Company is vested with all property, tangible and intangible, real and personal, of CompSource Oklahoma and control of the CompSource Oklahoma fund. ¶25 A plain reading of the Act reveals that the operation of CompSource Mutual will have many similarities to that of CompSource. CompSource Mutual will be in the private insurance business, organized and operated under Oklahoma law, but independent of the State of Oklahoma. It will serve the public need for workers' compensation insurance. CompSource Mutual will be supervised by a board of directors, the majority of which will be appointed by the Governor or legislative officers. CompSource Mutual will be a continuation of CompSource,10 and as a continuation of CompSource, CompSource Mutual will be vested with all of CompSource's assets. CompSource Mutual will not be permitted to dissolve except upon action by the Legislature and the Governor. ¶26 There are also noticeable differences. Some thirteen statutory schemes do not apply to CompSource Mutual that apply, at least in part, to CompSource.11 Governmental bodies will not be required to purchase insurance from CompSource Mutual.12 CompSource Mutual will be governed by the laws applicable to domestic mutual insurance companies.13 ¶27 Petitioner does not question that the state may engage in private insurance business for a public purpose.14 Petitioner questions whether our state constitution prohibits the Legislature from converting a state department, CompSource, into a private insurance company. We are guided by well established principles in assessing the conformity of a challenged state statute to our fundamental law. Liddell v. Heavner, 2008 OK 6, ¶16, 180 P.3d 1191, 1199-1200. Our state and federal constitutions are the bulwark to which all statutes must yield. In reviewing a statute for conformity to the constitution, we begin with a presumption of constitutionality. Id. A statute will be upheld unless it is clearly, palpably, and plainly inconsistent with the constitution. Id. The party challenging a statute's constitutionality has a heavy burden to establish that the statute is in excess of legislative power. Id. ¶28 Petitioner takes the position that CompSource is a "major component unit"15 of the State, and it cannot be given away without just compensation. Okla. Const., art. X, § 15.16 In support, petitioner refers the Court to the "2012 Comprehensive Annual Financial Report for the State of Oklahoma" which, at page 63, lists CompSource as one of eight major component units and states: "The Fund provides a source of workers' compensation insurance for all employers within the state including state agencies and other governmental units. The Fund is financed through employer premiums." Apparently, the Fund was included in the 2012 financial report because public entities purchase insurance from the Fund. However, a governmental accounting principle that requires CompSource to be included in an annual financial statement does not define the legal status of CompSource or its monies and other assets nor does it operate to destroy the pronouncements in Moran and subsequent jurisprudence. ¶29 Petitioner also contends that the Legislature has treated CompSource's money as State money when it captures CompSource's surplus funds through the "Market Equalization Assessment" much like it captures surplus funds from other state agencies. Enacted in 200917, 85 O.S.2011, § 401 imposes "an annual market equalization assessment" at the rate of 2.25% on: 1) all of the direct written premiums after all returned premiums are deducted and before dividends paid to policyholders are deducted, 2) all membership, application, policy and registration fees, and 3) all installment and finance fees or charges collected by CompSource, relating to written, continued and serviced insurance. Section 401 does not speak to surplus funds or the capture of agency surplus funds. Rather, the assessment in § 401 mirrors the 2.25% insurance premiums tax in 36 O.S.2011, § 624, from which CompSource is exempted. As the language "market equalization" suggests, it appears to be an assessment to put CompSource on the same footing with similarly situated private insurers bearing the premiums tax burden. See note 7 infra. ¶30 Petitioner argues that the Legislature cannot convert CompSource's assets into the assets of a private entity nor can it allow a private entity to assume assets of a state agency such as CompSource. This is so, according to petitioner, because, to qualify for the federal income tax exemption, "CompSource has affirmatively asserted that the State of Oklahoma provided its initial operating capital and that its assets will revert to the State of Oklahoma upon dissolution."18 We reject this argument because the federal tax exemption requires that the assets revert to the State upon dissolution or that State law does not permit the dissolution of such organization. Here, § 375.3(I)(3) specifically provides that CompSource Mutual shall not be permitted to dissolve. IV. CONCLUSION ¶31 Workers' compensation insurance and the state constitutional challenge presented in this original jurisdiction proceeding are matters imbued with serious public interest. We recognize that the statutes we review today will not become effective until January 1, 2015; however, this dispute threatens a serious disruption of our workers' compensation system.19 Accordingly, this Court previously assumed original jurisdiction to resolve this dispute. We conclude our opinion in Moran v. State ex rel. Derryberry, 1975 OK 69, 534 P.2d 1282, remains sound law. We also conclude that CompSource's monies and other assets are held in trust for the benefit of the employers and employees protected by the insurance issued by CompSource; the Oklahoma Constitution does not prohibit the Legislature from placing CompSource's money and other assets in trust with a domestic mutual insurer; and when transferred to CompSource Mutual, the trust impressed upon CompSource's money and other assets will continue. EXTRAORDINARY WRIT DENIED. ALL JUSTICES CONCUR. APPENDIX TO OPINION 85 O.S.Supp.2013, Section 375.3, reads: Section A. Effective January 1, 2015, CompSource Oklahoma shall operate as, and exercise the powers of, a domestic mutual insurer without capital stock or shares, in accordance with Title 36 of the Oklahoma Statutes, and shall be called CompSource Mutual Insurance Company. The Insurance Commissioner shall approve the Company's articles of incorporation and issue a certificate of authority to the Company to write workers' compensation insurance, as provided by Title 36 of the Oklahoma Statutes, not later than August 1, 2014, which shall become effective January 1, 2015. The Chief Executive Officer of CompSource Oklahoma shall take any measure necessary to accomplish the transition from CompSource Oklahoma to CompSource Mutual Insurance Company. B. The Company shall be organized as a corporation benefitting the citizens of Oklahoma by providing workers' compensation and related coverages which are competitively priced that generally benefit the public, but remain a financially independent entity that is neither more nor less than self-supporting. C. The Company may provide related coverage which is incidental to workers' compensation insurance, including but not limited to coverage for risks under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. Section 901 et seq.) and Title IV of the Federal Coal Mine Health and Safety Act of 1969 as amended by the Black Lung Benefits Act of 1972, as enacted or as may be amended by the Congress of the United States and other coverage related to employee and employment risks. D. The Company shall provide workers' compensation insurance coverage for volunteer firefighters as provided in Section 380 of Title 85 of the Oklahoma Statutes, as amended by this act. E. The Company shall be an insurance carrier for purposes of the Workers' Compensation Code. F. Except as otherwise provided in this act, the Company shall be subject to the requirements of Title 36 of the Oklahoma Statutes and all regulatory authority granted to the Insurance Commissioner as would any other domestic mutual insurance company. G. The Company shall be exempt from the following provisions of Title 36 of the Oklahoma Statutes until three (3) years after the Company begins operating pursuant to subsection A of Section 3 of this act: 1. Article 9 [Oklahoma Insurance Rating Act for casualty insurance]; 2. Article 9A [general insurance rating], other than Section 924.2 [reduced premiums for occupational safety plans] of Title 36 of the Oklahoma Statutes; and 3. Article 9B [Property and Casualty Competitive Loss Cost Rating Act]. H. CompSource Mutual Insurance Company shall not be considered a state agency, public body, department, public trust, or any other term used to describe an entity which is a part of the Executive Branch of the State of Oklahoma under any state statute or regulation, except as otherwise provided for in the CompSource Mutual Insurance Company Act. As such, Oklahoma state statutes that shall not apply to CompSource Mutual Insurance Company include, but are not limited to: 1. Sections 301 through 314 of Title 25, Oklahoma Open Meeting Act; 2. Sections 151 through 158.2 of Title 47, State-Owned Automobiles; 3. Sections 24A.l through 24 A. 29 of Title 51, Oklahoma Open Records Act; 4. Sections 151 through 200 of Title 51, The Governmental Tort Claims Act; 5. Title 61 of the Oklahoma Statutes, Public Buildings and Public Works; 6. Title 62 of the Oklahoma Statutes, Public Finance; 7. Sections 3-101 through 3-115 of Title 65, Department of Libraries; 8. Sections 201 through 217 of Title 67, Records Management Act; 9. Sections 301 through 303 of Title 67, Reproduction of Public Records; 10. Sections 305 through 317 of Title 67, Archives and Records Commission; 11. Sections 82.1 through 97 of Title 73, Capitol Grounds and Surroundings; 12. Chapters 4, 8, 10, 13, 17, 19, 27A, 30, 31, 37, 37A, 37B, 38A, 38B, 45, 45A, 48, 49, 50, 53, 56, 61, 81 and 110A of Title 74; and 13. Section 34.2 of Title 80. I. By enacting the CompSource Mutual Insurance Company Act, the Legislature creates CompSource Mutual Insurance Company which, subject to the provisions of this act: 1. Shall be organized and operated under Oklahoma law, but be independent of the State of Oklahoma; 2. Shall provide workers' compensation insurance to any employer in Oklahoma which seeks such insurance and meets other reasonable requirements relating thereto; 3. Shall not be permitted to dissolve; and 4. Shall have a majority of the Board of Directors or oversight body of such organization appointed by the Governor or legislative officers as specified in Section 4 of this act. J. Effective January 1, 2015, any references in the Oklahoma Statutes to CompSource Oklahoma or The State Insurance Fund shall be deemed references to CompSource Mutual insurance Company. FOOTNOTES 1 Petitioner did not present full legal argument with authorities in support of the asserted violations of the prohibitions in the Okla. Const., art. II, § 15 and art. V, § 55. Accordingly, we do not consider these challenges. Okla.Sup.Ct.R., Rule 1.11(k) (as amended June 14, 2013, effective August 1, 2013, 2013 OK 67). 2 A revolving fund is a special fund in the State Treasury created by legislative act for a special purpose; a revolving fund may include direct taxes, fees, or other revenue dedicated to the special purpose; the legislative act creating the revolving fund and dedicating money to the revolving fund constitutes a continuing appropriation of the money which may be expended only for the special purpose; and, if the special fund is created from sources other than the general revenue fund, the special fund expenditures may not create an indebtedness against the State nor be payable out of, or charged against, the general revenue funds of the State. Edwards v. Childers, 1924 OK 652, 228 P. 472; Draper v. State Bd. of Equalization, 1966 OK 87, 414 P.2d 276. 3 The 1933 enactment made an appropriation of $25,000.00 for the purpose of paying awards from the Fund and directed that the $25,000.00 "shall be repaid to the State and refunded to the General Revenue Fund." 1933 Okla. Sess. Laws, ch. 28, art. 2, § 22. The "any specific appropriation" language in art. 2, §1(a) of the 1933 enactment was not included in the 1937 version of the statute. There is some question as to whether the Legislature actually appropriated the initial $25,000.00, Moran, 1975 OK 69 at ¶17, 534 P.2d at 1285, but no party here argues that the $25,000.00 was not repaid from the Fund if the appropriation was made. 4 Presently, there are eight members of the Board of Managers of CompSource; they are the Director of the Office of Management and Enterprise Services or a designee, the Lieutenant Governor or a designee, the State Auditor and Inspector or a designee, one person appointed by the Governor, two persons appointed by the Speaker of the House of Representatives, and two persons appointed by the President Pro Tempore of the Senate. 85 O.S.2011, § 376. 5 85 O.S.2011, § 377. 6 The exceptions are 85 O.S.2011, § 380 concerning volunteer firefighters will be superceded effective January 1, 2015; § 383 concerning warrants, checks, vouchers, etc., § 396 concerning non-disclosure of certain information, and §§ 398 and 399 concerning self insurance are not repealed; and section 52 of the Act repealed § 378. 2013 Okla. Sess. Laws, ch. 254, § 52. 7 In Wright the Petroleum Storage Tank Release Indemnity Fund in the State Treasury consisted of funds collected from an one-cent per gallon assessment upon the sale of motor fuel which the Legislature declared would not become state funds at any time. The Wright opinion recognized that a mere legislative declaration does not, by itself, remove the public nature of the funds. 2007 OK 73 at ¶23, 170 P.3d at 1033. 8 Section 375.3 clearly expresses legislative intent that CompSource Mutual shall not be clothed as an Oklahoma governmental department. Section 375.3, in its entirety, is set out in the appendix to this opinion. 9 Private insurers pay a 2.25% tax on premiums. 36 O.S.2011, § 624. Since 2010, CompSource has paid a 2.25% annual market equalization assessment on premiums. 10 As a continuation of CompSource, the Act provides that persons who are employed by CompSource and participate in the Oklahoma Public Employees Retirement System (OPERS) shall, as employees of CompSource Mutual, remain members of OPERS. We note this could, if applied, create State liability for retirement benefits earned in private employment, an issue not before us today. 11 85 O.S.Supp.2013, § 375.3(H)(1) - (12). 12 Since enactment of the state insurance code in 1957, the statutes have allowed governmental bodies to be members of a domestic mutual insurer. 1957 Okla. Sess. Laws, p. 307, § 2115 (now codified at 36 O.S.2011, § 2115). 13 A mutual insurance company is an incorporated insurer without capital stock or shares, and it is owned by its policyholders. 36 O.S.2011, § 2103. Although the ownership of the assets of CompSource Mutual is not before us, it appears that the policyholders will have responsibility for CompSource's assets held in trust for the insured employers and their employees when those trust assets are transferred to CompSource Mutual. We note that a mutual insurer is required to hold all prepaid premiums and fees in trust, 36 O.S.2011, 2110(A), while § 2110(B) provides that when the certificate of authority is issued to the mutual insurer, all funds so held in trust shall become the funds of the insurer. 14 Okla. Const., art. II, § 31 provides: "The right of the State to engage in any occupation or business for public purposes shall not be denied nor prohibited, except that the State shall not engage in agriculture for any [purpose] other than educational and scientific purposes and for the support of its penal, charitable, and educational institutions." 15 "Major component unit" is a term of art used by the Governmental Accounting Standards Board (GASB) for state and local governments which provides guidance for basic financial statements and financial reporting considerations. Until July of 2012, the major component unit would be included in the government's financial report if the legally-separate entity is fiscally dependent on the government or the government has operational responsibility for the entity. In this case the Board of Managers has operational supervision over CompSource. After July of 2012, a major component unit should not be included unless there is a financial benefit or burden relationship between the government and the component unit. Governmental Audit Quality Center, American Institute of CPAs, Implementation Considerations of GASB 61 (2012) available at http://www.aicpa.org (search for "considerations of GASB 61"; follow "Implementation Considerations of GASB 61" hyperlink). In this case, under Moran, there is no benefit or burden relationship between CompSource and the State. 16 The Oklahoma Constitution, art. X, § 15(A) reads: A. Except as provided by this section, the credit of the State shall not be given, pledged, or loaned to any individual, company, corporation, or association, municipality, or political subdivision of the State, nor shall the State become an owner or stockholder in, nor make donation by gift, subscription to stock, by tax, or otherwise, to any company, association, or corporation. 17 2009 Okla. Sess. Laws, ch. 426, § 21, renumbered from Title 85, § 154 by Okla. Sess. Laws 2011, ch. 318, § 88. 18 The federal income tax exemption in 26 U.S.C. § 501(c)(27)(B)(iii)(I) and (II) provide: (I) the State makes a financial commitment with respect to such organization either by extending the full faith and credit of the State to the initial debt of such organization or by providing the initial operating capital of such organization, and (II) in the case of periods after the date of enactment of this subparagraph, the assets of such organization revert to the State upon dissolution or State law does not permit the dissolution of such organization. . . . 19 We previously assumed original jurisdiction, thereby deciding that judicial restraint is inappropriate here. See Keating v. Johnson, 1996 OK 61, 918 P.2d 51.  

7559d30c-e659-42d2-846b-2de254ab3d3e

Ellison v. Campbell

oklahoma

Oklahoma Supreme Court

ELLISON v. CAMPBELL2014 OK 15Case Number: 108468Decided: 03/11/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JACKIE EUGENE ELLISON, a/k/a GENE ELLISON, individually and as Trustee of the Equivalent Exemption Trust Created Pursuant to Article V, VII, and VIII of the Last Will and Testament of Glen G. Ellison, Deceased; MARCIA ELLISON, an individual; RICHARD M. HEALY, P.C., an Oklahoma Corporation; JAYNE JARNIGAN ROBERTSON, P.C., an Oklahoma Professional Corporation; and MICHAEL J. BLASCHKE, P.C., an Oklahoma Professional Corporation, Plaintiffs/Appellees, v. MICHAEL D. CAMPBELL, an individual, and M.D. CAMPBELL & ASSOCIATES, L.P., a Texas Limited Partnership, Defendants/Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 The plaintiffs/appellees, Jackie Eugene Ellison and Marcia Ellison (collectively, Ellisons/landowners) along with Richard M. Healy, P.C. (Healy), Jayne Jarnigan Robertson, P.C. (Robertson), and Michael J. Blascheke, P.C. (Blascheke), sued the defendants/appellants, Michael D. Campbell and M.D. Campbell & Associates, L.P. (collectively, Campbell/expert witness) , for breach of contract in Oklahoma County District Court. The plaintiffs/appellees alleged that Campbell failed to render a defensible expert opinion in underlying litigation in Canadian County, Oklahoma, and, thereafter, abandoned the task for which he was hired. Campbell counterclaimed for $34,758.50, characterized as uncompensated professional services. An Oklahoma County jury rendered judgment in the plaintiffs/appellees' favor. Based on the jury's verdict, the trial court entered judgment for the plaintiffs/appellees for $408,748.68, plus statutory interest. Campbell filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict. After hearing argument, the trial court overruled the motions and Campbell appealed. The Court of Civil Appeals reversed, finding that the breach of contract cause of action failed because the plaintiffs/appellees did not prove their cause by presenting an expert witness. Here, the expert witness indicted his own performance in the underlying matter. Supporting testimony made it clear that Campbell did not produce a document which accurately represented the state of the groundwater underlying the Ellisons' property or the source of its pollution. Any lay person could consider the testimony presented and conclude that the Ellisons did not receive the services for which they contracted. The expert witness's testimony was such that any reasonable juror might question his candidness. Under these unique facts, it was unnecessary for plaintiffs/appellees to rely upon expert testimony to prevail in their breach of contract claim. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. Jayne Jarnigan Robertson, JAYNE JARNIGAN ROBERTSON, P.C., Oklahoma City, Oklahoma, for plaintiffs/appellees, Michael J. Blaschke, P.C., Jackie Eugene Ellison, Marcia Ellison, Richard M. Healy, Jayne Jarnigan Robertson, P.C. Andrew E. Karim, KARIM LAW OFFICE, Oklahoma City, Oklahoma, for defendants/appellants, Michael E. Campbell, M.D. Campbell & Associates, L.P. WATT, J.: ¶1 We granted certiorari to consider a single issue.1 The first impression question presented is: whether, in a suit for breach of contract in which a party seeks compensation for an expert witness's failure to provide competent litigation support services in an underlying suit, the cause must be proven by the presentation of expert testimony. ¶2 We emphasize that this matter is grounded on a claim for breach of contract. In so doing, we also stress that this opinion does not stand for the proposition that a losing party may recover monies paid to an expert witness for the formulation and presentation of a professional opinion in the context of litigation merely because the party requesting such opinion did not prevail or recover to the extent anticipated. Nevertheless, we determine that, under the unique facts of this cause, expert testimony demonstrating that Campbell's performance in the underlying litigation was substandard was unnecessary. Campbell's own admissions were sufficient to infer negligence. Furthermore, there was additional, supporting testimony indicating that Campbell did not present an accurate document which could be empirically supported or shown to comply with governmental standards. The testimony presented was most certainly such that a lay person, through common knowledge or experience, could determine that Campbell did not produce the very thing for which the Ellisons' contracted, a supportable expert opinion concerning the state of the groundwater underlying the Ellisons' property and the source of its pollution.2 Finally, Campbell's contradictory statements made at the time of his deposition and at trial were sufficient that a reasonable juror might well question his veracity. FACTS AND PROCEDURAL HISTORY ¶2 On April 29, 1999, the Ellisons filed suit in Canadian County against an oilfield waste disposal facility alleging it was responsible for polluting the groundwater on their property. The Ellisons believed that the polluted ground water explained the deaths of cattle grazing on their property and drinking from its streams. They hired Campbell, an expert hydrogeologist,3 in January of 2001 to conduct tests and to drill monitoring wells to establish empirical data which would allow him to render a scientifically supportable expert opinion to confirm their suspicions and provide support for their suit. ¶3 Campbell recommended that several monitoring wells be drilled on the Ellisons' property to provide groundwater samples for pollution measurements. In an attempt to control litigation costs, the Ellisons agreed to the drilling of two monitoring wells. Samples were collected from the wells for a period of several years while a partial summary judgment in the cause was considered on appeal. At the request of the Ellisons, Campbell prepared his expert report and presented it to the defendants in the Canadian County cause in September of 2006. ¶4 On December 4, 2006, Campbell appeared for his deposition. The defendants grilled the expert witness over a three-day period. During that time, Campbell testified that he did not know whether certain protocols were followed in sample testing.4 He also pointed out errors in the report he submitted to the defense prior to his deposition, including the utilization of a value of 4,000 cubic feet in a calculation when it should have been 8,000 cubic feet.5 When asked if he thoroughly researched industry knowledge in regard to mud pits and their relationship to leakage and pollution, Campbell responded that it was "difficult to say" and that "serendipity has a lot to do with finding articles when you need them."6 ¶5 At the end of the first day of his deposition testimony, Campbell was asked to verify some of his calculations and to check errors in his written report. When asked about these items the next morning, Campbell told counsel: he "was too tired" to go over his report; he was "a busy person;" he knew the report contained misplaced bars on graphs, questionable concentrations, and the only way to be certain that all the charts in his materials were not riddled with errors would be to go back and look at them.7 Initially, when asked if the monitoring wells complied with Oklahoma Water Resources Board and Environmental Protection Act standards, Campbell testified he "didn't know" because he hadn't read them and that the Environmental Protection Agency would not accept his data as reliable.8 ¶6 Shortly after Campbell's deposition concluded on December 6, 2006, Campbell discontinued his assistance in the Canadian County litigation. While Campbell insists this occurred because he was fired, the Ellisons contend Campbell quit. The plaintiffs/appellees' allegation was supported by testimony presented at trial.9 ¶7 The Ellisons settled the Canadian County matter in January of 2007. In July of the same year, they filed their petition in Oklahoma County in the instant cause alleging negligence, tortious breach of contract, and breach of contract for the expert witness's failure to provide them with a scientifically supportable product which could be utilized in the Canadian County suit. The Ellisons sought actual and consequential damages. Campbell moved to dismiss the cause arguing that the Ellisons had not stated a claim upon which relief could be granted and that the claim sounded in contract rather than in tort. The trial court agreed in part, finding that the Ellisons' cause should proceed as a simple breach of contract case. Campbell counterclaimed arguing that he was owed some $34,758.50 for services rendered, together with prejudgment interest, reasonable attorney's fees, and costs. ¶8 The jury heard testimony in the instant cause over a four-day period, February 8th through the 11th, 2010. On March 11, 2010, based on the jury's verdict in the Ellisons' favor, the trial court entered judgment for the plaintiffs/appellees in the sum of $408,748.68,10 plus statutory interest. Campbell timely filed a motion for new trial or, in the alternative, a motion for judgment notwithstanding the verdict. Campbell argued that the Ellisons' claim for breach of contract failed because they did not present an expert in hydrogeology to counter his scientific conclusions. Unconvinced, the trial court denied the motions. ¶9 Campbell appealed. In an unpublished opinion, the Court of Civil Appeals reversed the trial court on September 6, 2013. It determined that the trial court committed error by failing to require the Ellisons to present an expert to refute Campbell's testimony for the purpose of establishing that his actions in the underlying cause amounted to a breach of contract. ¶10 On September 26, 2013, the Ellisons filed their petition for certiorari with this Court. The petition was granted on December 3, 2013. We received the record on the 9th. On January 6, 2014, a new attorney filed an entry of appearance on Campbell's behalf. Standard of Review a) Denial of new trial. ¶11 Upon review of a motion for a new trial where the trial judge presided at the trial, heard the testimony, observed the witnesses, and had full knowledge of the proceedings, it is well settled that our standard of review is one of abuse of discretion.11 This Court recognizes that the original adjudicator is in the best position to know whether substantial justice has been done.12 The strength of the showing for error or abuse of discretion is much less when the trial court refuses to grant a new trial than when such a motion is sustained.13 b) Judgment notwithstanding the verdict. ¶12 In ruling on a motion for judgment notwithstanding the verdict, the trial judge considers all evidence favorable to the nonmoving party and disregards all evidence favorable to the movant. We apply the same standard on review of the trial judge's decision.14 c) Jury Verdict. ¶13 We must affirm a jury verdict if there is any competent evidence reasonably tending to support it, evidence which is relevant and material to the issue to be determined.15 It is not for us to weigh the evidence. We consider all the evidence tending to support the verdict, together with every reasonable inference from it. We must affirm unless there is an entire absence of proof on a material issue.16 A jury verdict is conclusive as to all disputed facts and all conflicting statements, where there is any competent evidence tending to support the jury verdict. Where a jury has tried a cause, it is the exclusive arbiter of the credibility of the witnesses.17 d) Necessity of producing expert testimony. ¶14 Expert testimony is ordinarily necessary to establish causation in professional negligence cases.18 Nevertheless, an expert is not required if the element of damage lies within the common knowledge of lay persons.19 ¶15 Campbell's admissions were sufficient to demonstrate his substandard performance in preparing expert materials in the underlying litigation. Additional testimony confirmed that Campbell did not prepare an accurate document which could be empirically supported or shown to comply with governmental standards. Campbell's contradictory statements were sufficient to cause a reasonable juror to question his veracity. Under these unique facts, it was unnecessary for the Ellisons to present an expert witness. The average, lay person could most certainly conclude that Campbell had not performed the preparations necessary to produce a viable product for the purpose of demonstrating the existence and source of groundwater pollution in the Canadian County proceedings. ¶16 It is uncontested that Campbell and the Ellisons had an agreement for Campbell to provide hydrogeological services to support claims of pollution in the Canadian County litigation. Although Campbell prepared a report and gave his deposition in that cause, the Ellisons contend that he breached the contract by presenting an opinion which was scientifically unsupportable and of no benefit in the underlying suit. Campbell's primary argument is that the Ellisons were required to present an expert witness to refute his testimony and to establish that he breached the terms of his contract in the Canadian County litigation. Under the unique facts presented, we disagree with the expert witness's contentions. ¶17 The opposition in the Canadian County case took Campbell's pretrial deposition. Early on in the deposition, Campbell admitted that he did not know the reliability of some of his soil-testing results20 and that his report contained a number of typographical errors. There was testimony that, after the deposition, Campbell admitted he would not pass a challenge at trial.21 Again, Campbell vacillated on the stand and may have caused the jury to question his honesty concerning certain conversations that took place in the underlying cause, i.e.22 Campbell admitted that he had been wrong when he initially testified that certain conversations did not take place.23 There was also credible evidence that even before his deposition in the Canadian County matter was transcribed, Campbell quit without completing his contractual duties.24 ¶18 At trial, the first witness called was Brad Gungoll (Gungoll), one of several attorneys representing the oilfield waste disposal facility in the Canadian County litigation. He testified that, in presenting an expert's report to laymen, one who had prepared a report which was attentive to detail was more likely to have credibility with the jurors than one which was riddled with typographic errors.25 Gungoll went on to state that, in the Canadian County litigation, Campbell did not present himself as an expert "attentive to detail." The witness pointed out that: there were a number of typographical errors in the report; the expert witness was unable to back up the elements of his report; when Campbell's deposition was taken, the plaintiff's case was "basically over;" and Campbell essentially abandoned some aspects of his own report, making it impossible for the Ellisons to rehabilitate him as a credible witness.26 ¶19 On cross-examination, Gungoll was asked to demonstrate where or how Campbell's report was deficient. In response, he pointed out that much of the expected background data was not collected and that it would be impossible to verify test results because water could not be drawn from the monitoring wells, perhaps because they were not properly completed.27 Most notably, Gungoll stated that, by the time Campbell's deposition concluded, the Ellisons' case "for all intents and purposes, was in serious trouble"28 and that there was nothing which could have been done to rehabilitate their witness.29 ¶20 At least one of the attorneys in the underlying litigation testified that Campbell had admitted to him that he could not support the data contained in his reports30 and that the information Campbell did ultimately present "was incredible, not to be believed."31 The same individual stated that Campbell admitted not following the protocols set by the Environmental Protection Agency or the Oklahoma Water Resources Board in drilling the monitoring wells.32 When Campbell was called to testify, he denied admitting that the wells had been "fouled up" but admitted remembering his deposition testimony essentially confirming that such was the case.33 ¶21 The plaintiffs/appellees did not call an expert to testify concerning the opinions offered by Campbell as a hydrogeologist in the underlying cause. Nevertheless, the jury heard ample testimony, easily understood by any lay person, demonstrating the shortcomings in Campbell's work in the Canadian County litigation. Furthermore, Campbell's testimony, in and of itself, presents sufficient evidence from which the jury could have determined that the report he submitted was not what the Ellisons had bargained for when he was hired as an expert in the Canadian County matter. Finally, there was testimony confirming that even Campbell willingly acknowledged his own shortcomings in preparing the report for litigation purposes. Under these unique facts, it was unnecessary that the Ellisons present expert testimony by another hydrogeologist to counter Campbell's conclusions in the underlying litigation. Furthermore, we determine that the trial court did not abuse its discretion in denying the request for a new trial or judgment notwithstanding the verdict. CONCLUSION ¶22 This opinion should not be read for the proposition that a losing party may recover monies paid to an expert witness for the formulation and presentation of an opinion in the context of litigation merely because the party requesting such opinion did not prevail or recover to the extent anticipated. Rather, here, we are faced with a unique set of circumstances. An individual held himself out as an expert in hydrogeology capable of preparing a scientifically supportable report in that field. He contracted with the Ellisons to prepare such a document and be available to support it with his testimony. Instead, he produced a report which was admittedly error-riddled and based upon methodologies not meeting either state or federal regulations. Simply, Campbell did not perform the services for which the Ellisons contracted and paid. ¶23 The cause was tried to a jury. It heard evidence competent to support its verdict. Whether we agree or disagree with the outcome is immaterial. It is not for this Court to second-guess such a verdict. Therefore, we affirm both the trial court's denial of a new trial and motion for judgment notwithstanding the verdict. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, JJ. - CONCUR GURICH, J. - RECUSED FOOTNOTES 1 On appeal, Campbell made a number of additional arguments left unaddressed by the Court of Civil Appeals. Our resolution of the cause is dispositive of all issues related to allowing testimony of individuals Campbell categorizes as "non-experts" or involving alleged deficiencies in evidence because the plaintiffs did not present a scientific expert. Objections regarding Campbell's being allowed to either discover information from the resolution, dismissal, or settlement of the Canadian County suit or to allow presentation of the same during trial are unconvincing. When those events occurred, Campbell was no longer associated with the Ellisons or the Canadian County action. At the hearing on the motion for new trial, Campbell argued that the jury should have been informed "that the case was resolved on the [Ellison's] own terms." Transcript of Motion for New Trial, April 29, 2010, at pp. 5-6. As we have emphasized, the only issue in this cause is whether Campbell breached his contract with the Ellisons in the preparation of the report intended to be utilized in the underlying litigation. How the underlying tort claim was ultimately resolved has little or nothing to do with whether Campbell fulfilled his contractual obligations. No clear abuse of discretion being demonstrated in ruling on the exclusion, we leave it undisturbed. See, Bierman v. Aramark Refreshment Servs., Inc., 2008 OK 29, ¶17, 198 P.3d 877; Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, ¶32, 148 P.3d 880; Myers v. Missouri Pacific R.R. Co., 2002 OK 60, ¶34, 52 P.3d 1014. Campbell also asserted that the trial court erred in allowing Robertson, a party and counsel for plaintiffs, to both testify as a witness and advocate before the jury. In Crussel v. Kirk, 1995 OK 41, ¶¶11-12, 894 P.2d 1116, we made it clear that the predecessor to Rule 5.5, Rules of Professional Conduct, 5 O.S. 2011, Ch. 1, App. 3-A, did not render an advocate incompetent as a witness. Rather, it invested the trial court with discretion to determine whether that advocate might testify. In Crussel, and here, the testifying attorney did not act as an advocate at trial, present arguments, or examine witnesses. See, Transcript of Motion for New Trial, this note supra, comments of the trial judge at p. 12 which provide in pertinent part: ". . . [T]he fact that Robertson was a plaintiff but she is also a lawyer, I tried to make sure that this group was separated from their lawyer, except she sat as a representative and testified. . . . But I have always excluded the attorney from having a direct involvement in the trial of the case. On the other hand, I have allowed that attorney to be of assistance to the attorney they subsequently hired. . . .". Finally, Campbell's complaints about wanting to exclude a witness who was not called and any objections concerning instructions are groundless. Transcript of Motion for New Trial, the note supra, providing in pertinent part: ". . . THE COURT: Okay. I guess the thing about Cottingham that doesn't seem to make any sense to me, is he wasn't allowed to testify, so even if there was some issue about how they compensated for his time, he didn't testify anyway. MR. TOLSON: You do have a good point in that regard, Your Honor. . . .". Transcript for Motion for New Trial, this note supra, providing in pertinent part at p. 7: ". . . THE COURT: There was some discussion in the response that some of these - you didn't object to some of these instructions on the record. MR. TOLSON: I believe - at the end, that's correct, whenever the - we had your conclusion, I didn't make those objections . . .". 2 West v. Board of County Comm'rs of Pawnee County, see note 19, infra. See also, Johnson v. Hillcrest Health Center, Inc., note 19, infra. 3 Transcript of Proceedings, February 9, 2010, Michael D. Campbell testifying in pertinent part at p. 210: ". . . Q. Mr. Campbell, what is your profession or occupation? A. I'm a professional hydrogeologist and geologist. Q. And hydrogeology is what? A. The study of groundwater. . . ." 4 Deposition of Michael D. Campbell, December 4, 2006, providing in pertinent part at p. 17: ". . . Q You understand that there's a specific protocol in utilization of the Hach kit, do you not? . . . THE WITNESS: Yes, there's always instructions as to how to use them, yes. Kits. Q (By Mr. Cottingham) In regard to how the Hach kit was used at the FPC site, you don't know if that protocol was followed or not, do you? A No. . . ." 5 Deposition of Michael D. Campbell, December 4, 2006 providing in pertinent part at pp. 38-40: ". . . Q So is the report - is the report incorrect in that respect? A That report - this report is incorrect in two places. One, in the cover page, and the other is in the section 1 - must be page 1. Q All right. A Secondly, I noticed, in rereading my rebuttal, that a typo occurs on page 3, one, two, three, fourth line, middle of the line it says 4,000 cubic feet. That 4 should have been an 8. That's a typo. Q (By Mr. Cottingham) That fly ash - and I know the load tickets that your referring to, that - correcting the report form 4,000 to 8,000 cubic feet - what percent of that is the total cubic feet of material in the FPC site? A Don't know. . . . Q Using those volumetric calculations then, what does 8,000 cubic feet of fly ash equate to in terms of percent of that volume? A We'd have to get out that calculation and then we'd have to select which of the cases that I used and then do the division. . . . Q But you were still willing to rely on that in terms of your affidavit? A Yes, because it seemed to be reasonable in a general rule of thumb. . . ." 6 Deposition of Michael D. Campbell, December 4, 2006, providing in pertinent part at pp. 65-67. 7 Id., providing in pertinent part at pp. 289-291. 8 Id., December 4, 2006, providing in pertinent part at pp. 322-330. 9 Transcript of proceedings, February 10, 2010, Michael J. Blaschke testifying in pertinent part: ". . . Q. All right. Did there come a time after that deposition when you spoke with Mr. Campbell? A. Yes, there was. Q. And did he have some comment on what you should do with the case from that point forward with regards to him? A. Well, in essence he quit and said he could not or would not help us anymore. . . ." 10 The amount awarded was almost identical to the amount the Ellisons paid to Campbell ($312,648.82) along with the amount they expended at his request for investigatory work ($105,663.33). [These two figures total $418,312.15.] 11 James v. Tyson Foods, Inc., 2012 OK 21, ¶12, 292 P.3d 10; B-Star, Inc. v. Polyone Corp., 2005 OK 8, ¶13, 114 P.3d 1082; Head v. McCracken, 2004 OK 84, ¶2, 102 P.3d 670; Evers v. FSF Overlake Associates, 2003 OK 53, ¶6, 77 P.3d 581. 12 James v. Tyson Foods, Inc., see note 11, supra. 13 James v. Tyson Foods, Inc., see note 11, supra; Head v. McCracken, see note 11, supra; Mooney v. Mooney, 2003 OK 51, ¶50, 70 P.3d 872. 14 Covel v. Rodriguez, 2012 OK 5, ¶11, 272 P.3d 705; Computer Publications, Inc. v. Welton, 2002 OK 50, ¶6, 49 P.3d 732. 15 King v. Berryhill Fire Protection Dist., 2013 OK 76, ¶5, 311 P.3d 836; Covel v. Rodriguez, see note 14, supra. 16 Covel v. Rodriguez, see note 14, supra. 17 Florafax International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, ¶3, 933 P.2d 282. 18 See, Strubhart v. Perry Memorial Hosp., 1995 OK 10, ¶33, 903 P.2d 263; Boxberger v. Martin, 1976 OK 78, ¶14, 552 P.2d 370. 19 West v. Board of County Comm'rs of Pawnee County, 2011 OK 104, ¶20, 273 P.3d 31. See also, Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, ¶13, 70 P.3d 811. 20 See notes 4-5, supra, quoting Deposition of Michael D. Campbell. 21 Transcript of proceedings, February 11, 2010, Jayne Robertson testifying in pertinent part at p. 496: "Q. What did you say? A. I told [Campbell] that he would be very surprised if the Judge in Canadian County would allow his testimony to be presented. He responded that he felt the same, that he didn't think he would pass a challenge either. . . ." 22 Transcript of proceedings, February 11, 2010, Jayne Robertson testifying in pertinent part at p. 496-97: ". . . Q. So anything that Mr. Campbell said in this regard about what happened after the deposition is not true; is that correct? A. I'm saying there were many things that Mr. Campbell said that were not true. Q. Mr. Campbell testified also that there was no such conversation with Mr. Blaschke along with what - as far as what Mr. Blaschke said in the notes that he said that nobody can read but he and his wife. Mr. Campbell testified that that conversation did not happen. . . . A. But the phone records show otherwise. And I was also in the office when Mr. Blaschke was talking to him. . . ." 23 Transcript of proceedings, February 11, 2010, Michael Campbell testifying in pertinent part at pp. 519-20: ". . . Q. Mr. Campbell, yesterday I had questioned you about whether there had been a telephone call between you and Mr. Blaschke. And you at the time had told the jury that absolutely not. Was that your testimony at the time? A. Yes, that was my testimony at the time, yes. Q. Is you testimony still the same? A. No. And I'd like to explain. . . . A. Thank you. After I testified that there was no conversation, when I got back to the table, I got to thinking that there's something not quite right there. And I remembered that in the past there was a conversation between Mr. Blaschke and I, and -- but I know generally what it was about. . . . Q. The conversation that you did have with Mr. Blaschke, was it of the things that Mr. Blaschke said in his notes and read into the record when I was questioning him? A. That's exactly what I was emphasizing, no, that conversation was not held. I remember it was something about Ms. Robertson being angry after the deposition about me, and just the general things of what's going to happen in the future. . . ." 24 Transcript of proceedings, February 11, 2010, Jayne Robertson testifying in pertinent part at p. 516: ". . Q. Had Mr. Campbell already quit by the time the deposition was transcribed? A. Shortly thereafter, yes. . . ." 25 Transcript of Proceedings, February 8, 2010, Brad Gungoll testifying in pertinent part at p.58. 26 Id., Brad Gungoll testifying in pertinent part at pp. 58-64. 27 Transcript of proceedings, February 8, 2010, Brad Gungoll testifying in pertinent part at: p.73: ". . . Q. I want to know sir, how you can sit here in front of these people and tell them what the right standards are, when you cannot even voice what it is that [Campbell] failed to do? A. I didn't say I couldn't voice. I told you just the opposite. I said, I can't tell you chapter and verse where it is in that deposition or in that report, but I can also tell you that he didn't - he never delineated the plume, he never found background, he did a lot of the simple things to do in any pollution litigation, he never did. . . ." p. 85: ". . . Q. Do you know if Mr. Campbell met those standards in this case? A. I don't recall that detail whether or not he actually - I know some of these wells were completed in such a way there wasn't any water in them, or where he couldn't reproduce his tests. I don't know why. I don't know if that's the way they were completed. You certainly couldn't run three measures of water out of it before you tested if you can't get any water out of it. Whether or not that was just something he had to do or not, I don't know but I know that was something I can recall specifically that was a problem. . . ." 28 Transcript of proceedings, February 8, 2010, Brad Gungoll testifying in pertinent part at p. 86. 29 Id., February 8, 2010, Brad Gungoll testifying in pertinent part at p. 90. 30 Transcript of proceedings, February 9, 2010, Michael Blaschke testifying in pertinent part at p. 189: ". . . Q. Okay. And who made the determination in your mind that Mr. Campbell could not support his reports? A. Well, collectively the three lawyers did, and then he did when he confirmed that to me. . . ." 31 Transcript of proceedings, February 9, 2010, Michael Blaschke testifying in pertinent part at p. 192. 32 Id., February 9, 2010, Michael Blaschke testifying in pertinent part at p. 209. 33 Transcript of proceedings, February 9, 2010, Michael Campbell, when confronted with his prior deposition, testifying in pertinent part: at pp. 258: ". . . Q. Well, let's read that. My question, 'After you realized that Mr. Alexander had fouled up the monitoring well in Canadian County, did you go back and check his other work? Answer: Yeah, everything . . .'" at p. 260: ". . . 'Question: You attempted to call [the driller] to discuss deficiencies in this well and he wouldn't respond to it? Answer: That's correct. Question: Did you tell him I need to talk to you about the deficiencies in this? Answer: Yes. In this well. Yes [sic] I did. . . .'"

2d85fa4a-ed8e-40d2-b708-7fc5e038b165

Pierce v. Dept. of Public Safety

oklahoma

Oklahoma Supreme Court

PIERCE v. STATE ex rel. DEPT. OF PUBLIC SAFETY2014 OK 37Case Number: 111418Decided: 05/06/2014Companion to Nos. 111419 and 111420THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PHILLIP RYAN PIERCE, Plaintiff/Appellee, v. STATE OF OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 The plaintiff/appellee, Phillip Ryan Pierce (Pierce/driver), appealed the suspension of his driver's license by the defendant/appellant, State of Oklahoma ex rel. Department of Public Safety (State/Department), in an administrative proceeding for driving under the influence (DUI). Pierce alleged that the Department's delay of a revocation hearing for a period of approximately twenty (20) months violated his right to a speedy trial under the Okla. Const. art. 2, §6. The trial court agreed, setting aside the revocation order and reinstating Pierce's driving privileges. A divided Court of Civil Appeals reversed. Although expressing its concern related to the inordinate delay in the proceedings, the appellate court determined that Pierce had not asserted his right to a speedy resolution of his cause, was not prejudiced by the postponement, and that the Department did not abuse its discretion in waiting almost two years to finalize the charges in the cause. Here, the driver lived under the cloud of a pending revocation proceeding for approximately twenty (20) months. Knowing that its complaining witness was scheduled to be deployed to serve his country, the Department intentionally postponed the proceeding and did not schedule a hearing to allow the driver to be heard either on the merits or on the delay. The Department took these actions although the arresting officer would have been available for a hearing during the five (5) months and, on an emergency basis, for three (3) additional months preceding his deployment and delayed the hearing for more than a month after the officer returned stateside. These delays occurred despite the driver's timely request for a hearing. Under these unique facts, we hold that the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, §6, was violated and order reinstatement of his driving privileges. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. Barry K. Roberts, Norman, Oklahoma, Dave Stockwell, Stockwell Law Offices, Norman, Oklahoma, for plaintiff/appellee, Brian Kieth Morton, Department of Public Safety, Assistant General Counsel, Oklahoma City, Oklahoma, for defendant/appellant. WATT, J.: ¶1 Certiorari was granted to address a single issue.1 Was the delay of approximately twenty months in scheduling a revocation hearing aimed at suspending the driving privileges of the plaintiff/appellee was a violation of the constitutional right to a speedy trial guaranteed by the Okla. Const. art. 2, §6?2 ¶2 The driver lived under the cloud of a pending revocation proceeding for some twenty (20) months. Knowing that its complaining witness was scheduled to be deployed to serve his country, the Department intentionally delayed a hearing, not only depriving the driver of being heard on the merits but also denying his opportunity to oppose the delay. It did so despite the fact that the arresting officer was available to testify for the five (5) months preceding deployment. He could also have been called to testify via subpoena, on an emergency basis for an additional, three (3) months.3 Once he returned from his assignment, the Department again was slow to docket the proceeding, waiting for more than a month after the officer returned stateside. The unwarranted delay to schedule an administrative proceeding occurred despite the driver's timely request for a hearing. We hold that, under the unique facts presented, the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, §6, was violated and order reinstatement of his driving privileges. FACTS AND PROCEDURAL HISTORY ¶3 On October 31, 2010, Pierce was stopped on suspicion of driving while intoxicated by a University of Oklahoma police officer, Sergeant Bishop. Bishop then contacted Officer Hewett (Hewett), who with the aide of another officer, administered field tests to detect intoxication. Pierce failed these tests and a blood sample was taken. Hewitt executed an arrest. The following day, on November 1, 2010, Pierce filed a timely request for an administrative hearing to contest revocation of his driver's license.4 ¶4 For a period of approximately eight months following the driver's request for a hearing, Hewitt was in the United States. In April of that year, he was called to active duty as a member of the Oklahoma National Guard. Nevertheless, he was able to attend court in Cleveland County during this period. Furthermore, the arresting officer testified that he could have been available for a hearing on an emergency basis until he left the country in July 2011 for Kuwait.5 Hewett was back in Cleveland County by April of 2012. However, the administrative hearing, requested in November of 2010, did not take place until approximately twenty (20) months later on June 8, 2012. At the conclusion of the hearing, Pierce's drivers' license was suspended for one-hundred-and-eighty (180) days. Less than a week later, the driver appealed the revocation to the district court.6 ¶5 The district court heard the matter on August 16, 2012. Although Pierce did not dispute the procedures or results of the tests and investigation, he did argue that his constitutional right to a speedy resolution of the cause, as guaranteed by the Okla. Const. art. 2, §6,7 was denied. The trial court agreed and reversed and vacated Pierce's driving prohibition, reinstating his drivers' license. Over a vigorous dissent, the majority of the Court of Civil Appeals reversed. ¶6 Pierce filed a petition for rehearing before the Court of Civil Appeals which was denied on December 13, 2013. Thereafter, the driver filed a timely petition for certiorari on January 2, 2014. The Department filed for an extension to respond thereto. The response was received on February 3rd to which Pierce replied on the 13th. The record was received from the Court of Civil Appeals on March 25, 2014. Certiorari was granted the same day. Constitutional issues are subject to de novo review. ¶7 Whether an individual's procedural due process rights have been violated is a question of constitutional fact which is reviewed de novo.8 De novo review requires an independent, non-deferential re-examination of the administrative agency's legal rulings.9 ¶8 The right to a speedy and certain remedy without delay, in a civil proceeding, is one of the rights enjoyed by Oklahoma citizens,10 including drivers having a recognized property interest11 in the license that allows them to travel freely through the utilization of an automotive vehicle. In determining whether Pierce suffered a deprivation of that right in this civil proceeding, we consider four factors: 1) the length of the delay; 2) the reason for the delay; 3) the party's assertion of the right; and 4) the prejudice to the party occasioned by the delay.12 ¶9 Under the unique facts presented, the twenty (20) month delay in scheduling an administrative hearing violated the driver's right to a speedy trial guaranteed by the Okla. Const. art. 2, §6. ¶10 a) The Department had a sufficient period of time, between five and eight months, to either present the arresting officer to testify or to secure his testimony in some other appropriate manner. ¶11 The Department asserts that its delay of some twenty (20) months in scheduling a revocation proceeding in the instant cause is justified, largely on an argument that its complaining witness was unavailable. Pierce points out that for a minimum of five (5) months following his being detained, the arresting officer was easily available to testify in a proceeding in Cleveland County and could have been made available, on an emergency basis, for the following three months.13 In an alternative argument, the Department insists that budgetary and personnel matters kept it from setting Pierce's revocation hearing at an earlier date. The Department's arguments are unconvincing. ¶12 The most troubling factor in this cause is the one that the trial court recognized, a delay of some twenty (20) months when, for a period of some eight (8) months, the Department's witness was available and able to testify either in person or telephonically. Originally, the Department blamed the delay on budget cuts, limited personnel, and the number of DUI's being filed.14 This argument makes the Department's assertion that the delay was "totally . . . due to the unavailability of the witness" less than convincing.15 ¶13 b) The delay in scheduling of an administrative hearing rests entirely with the Department. ¶14 All the facts indicate that the driver acted in a timely fashion from the date of his arrest until the time of filing for certiorari to have this matter resolved at the first opportunity. However, the Department, on February 8, 2011, three months before the arresting officer actually left the United States and two months after the Department received the results of Pierce's blood tests, asked the arresting officer to compile a list of cases which needed to be postponed because he would be the testifying witness. In so doing, the Department advised the arresting officer's supervisor that the appeal to the district court might be heard three months in the future.16 Clearly, at least in this case, if the Department had acted promptly in hearing the matter, i.e. by filing the cause shortly after having received the blood level evidence, absence of the arresting officer for appeal purposes would have presented no problem as this would have afforded the Department a minimum of five (5) months and a maximum of eight (8) months to complete the appeal. ¶15 The ultimate responsibility for the delay was the Department's deliberate action in postponing the cause. Such a delay weighs heavily against the governmental entity responsible for the same.17 This matter could have been resolved during a time period when the arresting officer was available to appear in person. Even were that not so, the arresting officer's testimony could have been preserved in some appropriate manner or he could have appeared telephonically. Therefore, under the facts presented, the delay between arrest and the administrative hearing was unreasonable. ¶16 c) Pierce's failure to assert the right to a speedy trial prior to review before the district court did not prohibit that tribunal, or this Court, from reviewing a constitutional challenge on appeal which is vested with strong public policy concerns for the state and for drivers. ¶17 The Department insists that the trial court was without jurisdiction to hear the speedy trial argument as it was not presented in the initial hearing in the administrative process. Pierce argues that he had no obligation to raise the claim as the law makes the assertion for him. Although the driver's underlying argument is not appropriate here,18 we agree with Pierce that the trial court had jurisdiction to determine the speedy trial claim. The failure to specifically assert the right can make it difficult to prove a denial of a speedy trial.19 Nevertheless, it is unquestioned that Pierce requested an administrative hearing less than twenty-four (24) hours after he was arrested. Furthermore, we agree with Pierce that it would have been appropriate for the trial court to have heard and determined the speedy trial issue, while the arresting officer was in the United States and before he was deployed to Kuwait. ¶18 Title 67 O.S. 2011§754(F)20 outlines the scope of the hearing by either the Commissioner of Public Safety or a designated hearing officer. Nothing in the statute provides for the Commissioner of Public Safety or the designated hearing officer to hear constitutional challenges. Furthermore, it has long been recognized that public interest issues may be considered on appeal upon a theory not presented to the trial court.21 Most certainly, the right to a speedy and certain remedy without delay, in a civil proceeding, is one of the rights enjoyed by the citizens of Oklahoma.22 This Court has also determined that a person's claim to a driver's license is indeed a protected property interest entitled to application of due process standards.23 No doubt, the interest of the states in depriving drunk drivers of permission to continue operating an automobile is particularly strong.24 ¶19 Finally, there is a strong public interest in ensuring that drunk drivers are not on our highways and byways and that drivers are afforded constitutional protections to ensure that their property interests, in the form of drivers' licenses, are honored. We determine the trial court had authority to address the deprivation issue as presented in the form of an argument encasing the issue of deprivation of the right to a speedy trial. ¶20 d) Undoubtedly, the driver suffered some prejudice simply because the state of his driving privileges, though not revoked, remained in limbo for almost two years. ¶21 The Department insists that, because Pierce did not testify or present any "direct" evidence of prejudice, his speedy trial claim must fail. Conversely, Pierce argues that living under the cloud of concern that he was in danger of losing a property interest and having his driving privileges revoked was, in itself, evidence of prejudice. Although this may not be the most clear case of delay causing prejudice, under the facts presented, the potential loss of a property interest is sufficient to meet this prong of the four-part test of deprivation of the right to a speedy trial. ¶22 The delay here was neither minimal nor reasonable. The delay, no element of which was under the control of the driver, spanned almost two (2) years.25 The Department had a sufficient time between the arrest and the date its material witness would be unavailable to either hold the hearing or preserve the arresting officer's testimony. The failure to hold a timely hearing most certainly contravened the Legislature's intent that these matters be handled in a timely manner.26 CONCLUSION ¶23 Minimum standards of due process27 require administrative proceedings that may directly and adversely affect legally protected interests be preceded by notice calculated to provide knowledge of the exercise of adjudicative power and a meaningful opportunity to be heard.28 Delay without motive may be insufficient to demonstrate a deprivation of due process.29 However, in and of itself, delay can result in a due process denial.30 Fundamental notions of justice, fair play, and decency are offended when actual prejudice is demonstrated from an unreasonable delay.31 ¶24 Research reveals that the resolution of the question presented is largely governed by the facts of the cause.32 Limbo serves no one well when a property interest hangs in the balance.33 Delay, in and of itself, can result in a due process denial.34 Pierce showed at least some prejudice because of the delay. The Department showed none for its intentional postponement of the proceedings for some twenty (20) months.35 Pierce lived under the cloud of a pending revocation proceeding for approximately twenty (20) months. Knowing that its complaining witness was scheduled to be deployed to serve his country, the Department intentionally postponed the proceeding and did not schedule a hearing to allow the driver to be heard either on the merits or on the delay. The Department took these actions although the arresting officer would have been available for a hearing during the five (5) months preceding his deployment and during an additional three (3) months of training. Furthermore, it delayed the hearing for more than a month after the officer returned stateside. These delays occurred despite the driver's timely request for a hearing. Under these unique facts, we hold that the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, §6,36 was violated and order reinstatement of his driving privileges. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, JJ. - CONCUR WINCHESTER, TAYLOR, GURICH, JJ. - DISSENT KAUGER, J. - NOT PARTICIPATING FOOTNOTES 1 The Court of Civil Appeals issued opinions in the two companion cases, both of which were reversed and remanded to the trial court for consideration of all factors related to the issue of whether a constitutional right to a speedy trial was violated. See, ¶8 and accompanying footnotes, infra. See, No. 111,420, Macey v. State of Oklahoma ex rel. Dept. of Public Safety, (November 15, 2013) [Mandate issued December 13, 2013]; No. 111,419, Irlando v. State of Oklahoma ex rel. Dept. of Public Safety (November 15, 2013) [Mandate issued on November 15, 2013]. 2 The Okla. Const. art. 2, §6 provides: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice." Although the United States Const. does not have a constitutional provision identical to art. 2, §6, the Sixth Amendment guarantees the right to a speedy and public trial, providing in pertinent part: "In criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ." 3 See, ¶4 and accompanying footnotes, infra. 4 Title 47 O.S. 2011 §754(D) providing in pertinent part: "Upon the written request of a person whose driving privilege has been revoked or denied by notice given in accordance with this section or Section 2-116 of this title, the Department shall grant the person an opportunity to be heard if the request is received by the Department within fifteen (15) days after the notice. . . ." 5 Transcript of proceedings, August 16, 2012, Officer Justin Hewett testifying in pertinent part: at pp. 33-34 ". . . Q. Do you recall when you left [the United States]? A. I left for Fort Sill in March. I left for Mississippi in April. And I arrived in Kuwait in July of - all in 2011. . . ." at p.37 ". . . THE COURT: So you were available until at least March of 2011, and could have been available, I guess, on an emergency basis until you actually left the country? THE WITNESS: Correct. . . ." 6 Title 47 O.S. 2011 §755 providing in pertinent part: "If the revocation or denial is sustained, the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the district court in the manner and subject to the proceedings provided for in Section 6-211 of this title. . ." Title 47 O.S. 2011 §6-211 providing in pertinent part: "A. Any person denied driving privileges, or whose driving privilege has been cancelled, denied, suspended or revoked by the Department . . . shall have the right of appeal to the district court as hereinafter provided. . . . E. The petition shall be filed within thirty (30) days after the order has been served upon the person, except a petition relating to an implied consent revocation shall be filed within thirty (30) days after the Department gives notice to the person that the revocation is sustained . . . It shall be the duty of the district court to enter an order setting the matter for hearing not less than fifteen (15) days and not more than thirty (30) days from the date the petition is filed. . . . M. An appeal may be taken by the person or by the Department from the order or judgment of the district court to the Supreme Court of the State of Oklahoma as otherwise provided by law." 7 The Okla. Const. art. 2, §6, see note 2, supra. 8 Matter of A.M. and R.W., 2000 OK 82, ¶6, 13 P.3d 484. 9 Id.; Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, fn. 1, 932 P.2d 1100. 10 State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Maddox, see note 22, infra; Flandermeyer v. Bonner, see note 22, infra; Meadows v. Meadows, see note 22, infra. 11 Price v. Reed, see note 23, infra. 12 State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶64, 264 P.3d 1197; Flandermeyer v. Bonner, see note 22, infra, explaining Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1973) and citing Civil Serv. Comm'n of the City of Tulsa v. Gresham, see note 22, infra. 13 See, ¶4 and accompanying footnotes, supra. 14 Transcript of Proceedings, August 16, 2012, Ms. Murray arguing before the trial court at pp. 22 and 25: ". . . MS. MURRAY: Your Honor, may I please make my argument for the record? THE COURT: Yes. MS. MURRAY: Thank you. There is no right to a speedy trial in a civil case. . . . [W]e have only a certain budget and a finite number of employees, but we have zero control over the number of drunk drivers in the State of Oklahoma and over the number of officer arrests of those drunk drivers. . . . [T]here's so many DUIs in the state that DPS can't keep up. . . ." 15 Transcript of Proceedings, August 16, 2012, Ms. Murray's response to the trial court's inquiry providing in pertinent part at p. 28: ". . . THE COURT: What I'm trying to find out ma'am, is this: Was the reason for the delay in the hearing due to the unavailability of the witness, the officer, or was it due to the unavailability of time to hear it? MS. MURRAY: In this case, it would have totally been due to the unavailability of the witness. The witness in this case . . ." [Emphasis provided.] 16 Transcript of Proceedings, August 16, 2012, Sergeant John Bishop testifying in pertinent part at pp. 44-45: ". . . Q (By Mr. Stockwell) Sergeant Bishop, those two pieces of paper you gave me, one is a full document, the other just has writing on the very top. Would you - referring to that, would you read that into the record, please. And when you do that, indicate who it's from and who it's to. A. Okay. I'll do it in chronological order. I think that'll help. It's communication from DeAnn Taylor to Officer Justin Hewett on Tuesday, February 8th at 1306 or 1:06 p.m. The e-mail says, To Justin, please send me a list of all cases, if any, that you are current - that you currently have pending that we need to continue at the administrative level. And it's signed DeAnn Taylor. Q. That was February 8, 2011? A. Yes, sir. February 8, 2011. Justin Hewett responds to DeAnn Taylor, DeAnn, here are the remaining implied consent hearings before I deploy. And he list off one, two, three, four, five, six, seven cases, and it's signed Justin Hewett. And then DeAnn copied Justin Hewett, myself, and another supervisor as she addressed Justin Hewett or as she addressed a person, Tammy West, I believe, from DPS, and that correspondence says, Tammy, here's a list of the IC, implied consent, hearings that we need to be continued. The hearings are not to be reset until we receive notification that Justine is back from deployment and able to handle the hearings. And it's signed DeAnn. Q. Did you have any communication with DeAnn Taylor regarding why continue the hearings and not just have them now? A. Yeah. We - I was trying to keep an open communication with all the courts and DeAnn, and I spoke about why we were continuing the hearings. And she advised that if the hearing - the implied consent hearing was set and it went to a district court appeal, that the district court appeal could be up to three months away depending on their log, and the witnesses would be unavailable to testify and they would have to have that witness to testify after the implied consent hearing. . . ." 17 Ellis v. State, 2003 OK CR 18, ¶47, 76 P.3d 1131. 18 Generally, the law will make assertion if the party is incarcerated. See, State of Oklahoma ex rel. Trusty v. Graham, 1974 OK CR 146, 525 P.2d 1231; Davidson v. State, 1946 OK CR ___, 171 P.2d 640. 19 Barker v. Wingo, see note 12, supra. 20 Title 67 O.S. 2011§754(F) provides: "The hearing before the Commissioner of Public Safety or a designated hearing officer shall be conducted in the county of arrest or may be conducted by telephone conference call. The hearing may be recorded and its scope shall cover the issues of whether the officer had a reasonable ground to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance as prohibited by law, and whether the person was placed under arrest. 1. If the revocation or denial is based upon a breath or blood test result and a sworn report from a law enforcement officer, the scope of the hearing shall also cover the issues as to whether: a. if timely requested by the person, the person was not denied a breath or blood test, b. the specimen was obtained from the person within two (2) hours of the arrest of the person, c. the person, if under twenty-one (21) years of age, was advised that driving privileges would be revoked or denied if the test result reflected the presence of any measurable quantity of alcohol, d. the person, if twenty-one (21) years of age, was advised that driving privileges would be revoked or denied if the test result reflected an alcohol concentration of eight-hundredths (0.08) or more, and e. The test result in fact reflects the alcohol concentration. 2. If the revocation or denial is based upon the refusal of the person to submit to a breath or blood test, reflected in a sworn report by a law enforcement officer, the scope of the hearing shall also include whether: a. the person refused to submit to the test or tests, and b. the person was informed that driving privileges would be revoked or denied if the person refused to submit to the test or tests." 21 Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, fn. 30, 305 P.3d 1004; Davis v. GHS Health Maint. Org. Inc., 2001 OK 3, ¶25, 22 P.3d 1204. See also, Simons v. Brashears Transfer & Storage, 1959 OK 156, ¶24, 344 P.2d 1107. 22 State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Maddox, 2006 OK 95, fn. 11, 152 P.3d 204; Flandermeyer v. Bonner, 2006 OK 87, ¶11, 152 P.3d 195; Meadows v. Meadows, 1980 OK 158, ¶7, 619 P.2d 598. See also, Civil Service Commission of the City of Tulsa v. Gresham, 1982 OK 125, ¶¶38-40, 653 P.2d 920. 23 Price v. Reed, 1986 OK 43, ¶19, 725 P.2d 1254. 24 Illinois v. Batchelder, 463 U.S. 1112, 103 S. Ct. 3513, 3516, 77 L. Ed. 2d 1267 (1983); Price v. Reed, see note 23, supra. Argument before the trial court in Irlando v. Commissioner of the Dept. of Public Safety, No. 111,419, provided that there are some thirty-thousand (30,000) arrests for driving under the influence in Oklahoma annually, and that ten-thousand (10,000) of those cases go through the administrative hearing process. Transcript of Partial Proceedings, July 30, 2012, p. 14. 25 See, State ex rel. Oklahoma Bar Ass'n v. Mothershed, note 12, supra [Six-month delay in holding trial panel hearing did not violate attorney's constitutional right to a speedy trial in a civil proceeding.]. 26 The short-fuse time limits the Legislature imposes upon the plaintiffs in revocation proceedings indicates that it intended that these matters be dealt with judiciously so that those driving under the influence on Oklahoma's byways and highways could be quickly stopped from continuing with such practices. See, 47 O.S. 2011 §754(D), note 4, supra, giving a driver fifteen (15) days to request a hearing before the Department. See also, 47 O.S. §6-211, giving drivers thirty (30) days to file an appeal from a revocation and requiring the district court to set a hearing within fifteen (15) days and not more than thirty (30) days from the date of the petition. 27 United States Const. amend. 14, §1 providing in pertinent part: ". . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Okla. Const. art. 2, §7 provides: "No person shall be deprived of life, liberty, or property, without due process of law." Oklahoma's due process clause is coextensive with its federal counterpart and may, in some situations, afford greater due process protections than its federal counterpart. State ex rel. Board of Regents of the University of Oklahoma v. Lucas, 2013 OK 14, fn. 25, 297 P.3d 378; Oklahoma Corrections Professional Ass'n, Inc. v. Jackson, 2012 OK 53, fn. 13, 280 P.3d 959. 28 Dulaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶9, 868 P.2d 676; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, ¶¶12-14, 732 P.3d 438, cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764 (1987); Cate v. Archon Oil Co., 1985 OK 15, ¶7, 695 P.2d 1352. 29 Wright v. State of Oklahoma, 2001 OK CR 19, ¶¶13-14, 30 P.3d 1148. 30 DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir. 1984). 31 United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 2049, 52 L. Ed. 2d 752 (1977), rehearing denied, 434 U.S. 881, 98 S. Ct. 242, 54 L. Ed. 2d 164 (1977); Thomas v. State of Oklahoma, 1989 OK CR 37, ¶17, 777 P.2d 1366. 32 State v. Steigelman, 2013 MT 153, 302 P.3d 396 [426-day delay not violation of right to speedy trial.]; State v. Stops, 2013 MT 131, 301 P.3d 811 [740 days not too long when defendant responsible for delays.]; Rodgers v. State, 2011 WY 158, 265 P.3d 235 [180-day delay not unreasonable delay of speedy trial when delays caused by defendant.]; Seteren v. State, 2007 WY 144, 167 P.3d 20 [5-year delay not prejudicial to speedy trial rights where reason was full docket.]; Flandermeyer v. Bonner, see note 22, supra [One-year delay of an estimated one-day trial did not implicate speedy trial constitutional concerns where delays were more attributable to the actions of parties than to trial court.]; State v. Superior Court, 162 Ariz. 302, 783 P.2d 241 (1989) [120 day delay not violation of right to speedy trial where defendant incarcerated.]; Ward v. State, ___ Ga.App. ___, ___ S.Ed.2d ___, 2014 WL 815379 (2014) [Six-year delay not too long where right to speedy trial not persevered.]; State v. Johnson, 325 Ga.App. 128, 749 S.E.2d 828 (2013) [Delay of 33 months presumptively prejudicial.]; State v. Takyi, 314 Ga.App. 444, 724 S.E.2d 459 (2013) [18-month delay was unreasonable delay against State.]; Sechler v. State, 316 Ga.App. 675, 730 S.E.2d 142 (2012) [44-month delay uncommonly long and required to be weighed against state.]. 33 State of Oklahoma ex rel. Oklahoma Bar Ass'n v. Maddox, see note 22, supra. 34 DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir. 1984). 35 Under such facts, a delay of fifteen (15) months in a criminal proceeding was found to be inordinately unreasonable. State ex rel. Trusty v. Graham, see note 18, supra. 36 The Okla. Const. art. 2, §6, see note 2, supra.  

3381ce85-ff42-4e37-ab2c-ebcadb794766

West v. Pawnee County Bd. of Comm'rs

oklahoma

Oklahoma Supreme Court

WEST v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE COUNTY2011 OK 104Case Number: 108960Decided: 12/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHARLES WEST, Personal Representative of the Estate of ANGELA SCHREINER, Deceased, Plaintiff/Appellee, v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE COUNTY, Defendant/Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Angela Schreiner drowned in May of 1999 after driving into twelve feet of flood water covering a roadway in Pawnee County. The plaintiff/appellee, Charles West (West/father), filed a wrongful death action as the personal representative of Schreiner's estate against the defendant/appellant, Board of County Commissioners of Pawnee County (Commissioners/County). After a trial spanning two days, the jury returned a verdict in the estate's favor for $13,663.00. West moved for a new trial alleging the damages awarded were grossly inadequate. The trial court heard argument, granting a new trial based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience. The Court of Civil Appeals reversed and remanded finding that the trial court applied the wrong standard in granting the new trial motion and that the jury's verdict was supported by the evidence. The evidence established that: the mother was an exemplary parent working to better herself to increase the economic support of her five minor children; the children lost not only the companionship of the mother but of each other as well; the mother's death was tragic and traumatic; and $5,800.00 was expended for funeral expenses. The award of only $13,663.00, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. Under these facts, we hold that the trial court was justified in ordering a new trial to address the damages issue. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED AND CAUSE REMANDED. Derek S.A. Lawrence, Derek S.A. Lawrence, PLLC, Tulsa, Oklahoma, for plaintiff/appellee, Eric D. Cotton, Collins, Zorn, & Wagner, P.C., Oklahoma City, Oklahoma, for defendant/appellant. WATT, J.: ¶1 We granted certiorari for the sole purpose of determining whether the trial court erred in granting a motion for new trial where the jury awarded damages of $13,663.00 in a wrongful death action to the estate of a mother leaving behind five minor children. In so doing, we emphasize that Clark v. Bearden, 1995 OK 71, 903 P.2d 309 supports the granting of a new trial where the inadequacy or excessiveness of an award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. ¶2 The jury heard evidence that at thirty-one (31) Schreiner was an exemplary mother to her five minor children and was working while pursuing a college degree in chemical engineering to better her children's lives when she suffered a horrific death by drowning. The panel was appraised not only of the children's loss of companionship with their mother but with each other through placement with different family members, some of the living arrangements being less desirable than others. Evidence was presented that $5,800.00 was expended for funeral expenses. Despite this largely uncontested evidence, the jury returned a verdict in the estate's favor of only $13,663.00. The meager award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. Under these facts, we determine that the trial court did not err in ordering a new trial to address the issue of damages. FACTS AND PROCEDURAL HISTORY ¶3 On the evening of May 7, 1999, Schreiner said "good night" to her five (5) children and left to visit a friend in rural Pawnee County. She was thirty-one (31) at the time. Schreiner took Cemetery Road, a portion of which floods on a regular basis. On the day of the accident, there were signs in place warning of high water and indicating the road was closed to through traffic. Arguably, Schreiner ignored the signs and drove over a hill into approximately twelve (12) feet of water. ¶4 The forensic pathologist who examined Schreiner's body and conducted the autopsy testified that the external and internal examinations indicated death by drowning.1 He also noted the manner of bruising and the large number of contusions on her legs along with superficial injuries to her hands, including a broken nail and other abrasions, and significant bruising to the left hand.2 He ordered a complete toxicology screen which returned negative for drugs or alcohol.3 In addition, the pathologist opined that: nothing was revealed in the autopsy to indicate that Schreiner was not conscious when the car hit the water and began to sink; she likely struggled to escape the vehicle and that the contusions and injuries to the body occurred during the fight to survive; and for some period, while the vehicle was sinking and the driver was conscious, the mother experienced pain and suffering.4 ¶5 At the time of her death, Schreiner had custody of all five of her children to whom she was an excellent mother.5 She was working to support her children and was attending Tulsa University to further her education in an attempt to provide them with more economic stability.6 ¶6 Despite Schreiner's ability to provide for her five children, there simply was no one at her death who could accommodate all of the siblings.7 A family that had previously been a unit was broken up and parceled out to different homes. Three children went to live with their natural father. However, he was overwhelmed with the situation and one of the three moved in with her maternal grandfather. The two youngest children were placed with a great-aunt and uncle. Eventually, one of the children who had previously been living with his father was forced to move in with a grandmother because of allergies to cats in the father's home.8 The child who originally lived in the father's home and moved in with the maternal grandfather described her father's home as "dysfunctional" and not well kept.9 The separate households kept the children from developing normal sibling relationships.10 ¶7 West filed the wrongful death action11 on January 18, 2007 naming the Commissioners as defendants. The father alleged that his daughter's death arose as the direct result of the County's negligence in not closing the roadway when it became inundated with flood waters and/or failing to erect appropriate warning signs. After hearing evidence over a three (3) day period, the jury returned a verdict finding that: Schreiner was forty-three (43) percent negligent and that the County was fifty-seven (57) percent negligent. The jury awarded West $13,663.00 to be reduced by the trial judge by Schreiner's percentage of negligence making the actual cash award to the estate $7,787.91. When the $5,800.00 for burial expenses is subtracted from the monies actually received for Schreiner's wrongful death, less than $2,000.00 remained for the support of five minor children. ¶8 West filed a motion for new trial on April 16, 2008 alleging that the egregiously low value attributed to Schreiner's loss of life was inconsistent and contrary to the undisputed evidence and clearly in violation of 12 O.S. 2001 §651(4)12 providing that a new trial is warranted if the damages awarded are so excessive or inadequate as to appear to have been given under the influence of passion or prejudice. ¶9 On October 28, 2010, a hearing was held on the motion for new trial. The trial court granted a new trial based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience. The Court of Civil Appeals reversed and remanded finding that the trial court applied the wrong standard in granting the new trial motion and that the jury's verdict was supported by the evidence. West filed a petition for certiorari on August 11, 2011. Having reviewed the petition and answer thereto, we granted certiorari on October 31, 2011. Standard of Review ¶10 It has long been recognized that the granting of a new trial is within the wide discretion of the trial court.13 We will not reverse an order granting a new trial unless error is clearly established in respect to some pure, simple, and unmixed question of law.14 The judge who presides at the trial: hears the testimony; observes the witnesses; and has full knowledge of the proceedings during the trial process. It is that adjudicator who is in the best position to know whether substantial justice has been done. Where such a judge sustains a motion for new trial, a clear showing of manifest error and an abuse of discretion must be made before this Court is justified in reversing the ruling. The threshold for upholding the grant of a new trial is much lower than where the motion is overruled.15 Furthermore, when, as here, the new trial is granted by the same judge who tried the case, a much stronger showing of error or abuse of discretion is required for this Court to reverse than if a party appeals from a refusal to grant a new trial.16 ¶11 The only issue upon which new trial was requested was for the determination of an adequate monetary award for Schneider's wrongful death. By sustaining the motion, the parties are placed in a position to have the damages issue again submitted to a jury or court. ¶12 Under the facts presented, the trial court was justified in ordering a new trial to address damages. The award of only $13,663.00 in damages for the death of a thirty-one year old woman with the responsibility to support five minor children, in an of itself, evidences that the passion and partiality inhering in the award are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. ¶13 West argues that the jury essentially ignored testimony key to determining the appropriate damages award for his daughter's wrongful death, i.e. general damages such as pain and suffering, loss of companionship and love and affection suffered by the father and the children, and monetary support Schreiner would have contributed to her children. He asserts that the size of the award is demonstrative, in and of itself, of the jury's bias. ¶14 The County contends that Oklahoma jurisprudence prohibits sustaining the new trial motion based on a determination that the jury's monetary award for the loss of a human life was unconscionable and shocked the conscience.17 Generally, we might be in accord with the argument. Nevertheless, under the facts presented, we disagree as a matter of law. ¶15 The County finds support in Clark v. Bearden, 1995 OK 71, 903 P.2d 309. Clark concerned a medical malpractice claim associated with a colonoscopy performed on Clark at the age of seventy-five (75). Clark's colon was perforated during the procedure and a second surgery was required. At trial, the Clarks presented medical and hospital bills totaling $74,404.00. The charges related to the perforated colon amounted to approximately $33,500.00. Clark suffered a number of medical conditions following the initial surgery. Nevertheless, a medical expert testified that none of the subsequent conditions involving her sigmoid colon, treatment for respiratory problems, or a liver abscess had been caused by the perforated colon. The jury returned a verdict for $41,083.33, approximately $180.00 more than the difference between the damages claimed for both surgeries and the amount expended for the original surgery alone. ¶16 The Clarks moved for new trial on grounds of the inadequacy of the verdict. The trial court sustained the motion on grounds that "the inadequacy of the verdict is unreasonable and outrageous." We reversed, stating that: "[a] clear showing of prejudice is required before we will allow a trial court to set aside a jury verdict, or set it aside ourselves, for excessiveness or inadequacy of damages." We also overruled an early case, Shreve v. Cornell, 1938 OK 144, 77 P.2d 1 to the extent that it could be interpreted to allow a trial court to substitute its own judgment for that of a jury as a matter of conscience where there is evidence in the record to support the jury's verdict, and there is no clear showing that the jury's verdict was unreasonable and outrageous beyond all reason. However, in so doing, we did not "throw the baby out with the bath water." Even under Clark, the inadequacy or excessiveness of an award may justify a new trial where the passion and partiality inhering in it is so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous.18 ¶17 Today's cause is distinguishable both from Clark, and from the two cases it relied upon:19 Aldridge v. Patterson, 1954 OK 264, 276 P.2d 202 and Dodson v. Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064. In Aldridge, the parents of a ten-year-old boy brought suit for wrongful death. Although the parents sought $16,955.65 in damages, the jury returned a verdict for only $750.00. We reversed the trial court's grant of a new trial, in part, because there was evidence to support the verdict. ¶18 The Aldridge Court noted that the $750.00 award was a paltry sum. Nevertheless, it upheld the award where it exceeded the liquidated damages by some $300.00. Nevertheless, today's cause differs materially from the one presented in Aldridge. There the issue was what contributions the "dead child might have made to his parents' support" - a situation where no legal duty exists.20 Here, the question is what would have been the mother's support of her five children - a legal duty from which the mother would not have been relieved until all her children reached majority21 and in which the law implies substantial damages to the minor children by reason of the mother's death.22 In such a case, the law will imply a substantial loss to the minor child of a deceased regardless of whether the deceased had supported or intended to support the minor child. Here, there was evidence not only that Schreiner was supporting her children but also that she was doing her best to increase her income to a level which would have improved the children's economic position. ¶19 Dodson v. Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064 was a swimmer's suit to recover for damages sustained upon diving into an apartment complex swimming pool. Dodson presented evidence of economic damages of $3,409,120.77 and requested another $1,401,600.00 for pain and suffering. After an award of $3,000,000.00 in the swimmer's favor, the trial court granted the apartment complex owner's motion for new trial by reason of the swimmer's refusal to agree to remittitur. This Court reversed noting that "[i]f the damages were unsupported by the evidence, then there might be some basis for concluding that in some manner or another, the jury was prejudiced against the defendant." ¶20 Expert testimony is not necessary if the element of damage lies within the common knowledge of lay persons.23 No expert testimony was submitted regarding the mother's potential earning power. Nevertheless, West did testify that he expected his daughter would have earned a degree in chemical engineering within a matter of months had her life not ended so tragically. In closing, West's counsel presented the jury with a scenario in which it was explained that earning a minimum of $10.00 per hour once the mother completed her education in chemical engineering she could have expected an approximate income of $192,000.00 over ten years.24 In 1999, when the mother was killed, the minimum wage was $5.15. If that rate had stayed in effect, the mother could have expected to earn approximately $107,120.00 over the same period without a college degree. On the date of trial, the minimum wage was $7.25. Were the jury to have taken that amount into consideration and applied it over a ten year period, the total would have been approximately $150,800.00.25 There simply is no rational basis upon which the jury's award of only $13,663.00 can be sustained. The size of the award itself clearly demonstrates the panel's passion and prejudice. ¶21 Clark does not prohibit granting a new trial where the inadequacy or excessiveness of an award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. The jury awarded West $13,663.00, approximately $5,800.00 of which were for funeral expenses. No individual, trial judge, or member of this Court looking at an award limiting a mother's ability to support five children to approximately $8,000.00 over a period of ten years can say that the award was not "beyond all measure unreasonable and outrageous." The verdict, being so grossly inadequate, makes it clear that the jury was guided by considerations other than the evidence, i.e. passion or impartiality. Therefore, we determine that the trial court did not err in ordering a new trial to address the damages issue.26 CONCLUSION ¶22 The trial judge was present during the trial, observed the witnesses, and heard their testimony. There was largely undisputed evidence of Schreiner's pain and suffering prior to drowning, the loss of companionship and love suffered both by her father and her children, and of her attempts to meet a legal and moral duty to support her children to majority had she lived. After hearing argument from the parties' counsel, the trial court determined that the jury's award of $13,663.00 for the loss of Schreiner's young life was unconscionable and shocked the conscience. On the record presented, there has been no clear showing of manifest error and an abuse of discretion. The County simply has not met the difficult standard which must be demonstrated to show that the trial court erred in granting a new trial. Therefore, the trial court's new trial order must be upheld. The order of trial court is affirmed and the matter is remanded for a new trial as ordered below. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT AFFIRMED AND CAUSE REMANDED. COLBERT, V.C.J., WATT, EDMONDSON, REIF, COMBS, GURICH, JJ. - concur KAUGER, J. - concurs in part, dissents in part TAYLOR, C.J. and WINCHESTER, J. - dissent TAYLOR, C.J., dissenting The uncontested facts are clear. This roadway was flooded. The Pawnee County Commissioners closed this road and placed 8 foot barricades with two signs warning that the road was closed due to high water. The Decedent ignored all this and proceeded around the large barricade and warning signs and drove into 12 foot deep water and unfortunately died as a result of her own negligence. The highly-charged emotional evidence presented by the Plaintiff somehow moved the jury to assess some liability and damages upon the County. The Plaintiff now wants more money by way of a new trial on damages only. There is absolutely no legal basis upon which a new trial should have been granted. This jury was very generous under the evidence of this case. I agree with the analysis of the Court of Civil Appeals. There should be no new trial. FOOTNOTES 1 Transcript of Jury Trial, April 5 to 7, 2010, Ronald F. Distefano testifying in pertinent part at p. 214: ". . . Q Do you have an opinion on the cause of Angie Schreiner's death, Doctor? A Yes, I do. Q And what is that opinion? A In my opinion she died of drowning. . . ." 2 Transcript of Jury Trial, April 5 to 7, 2010, Ronald F. Distefano testifying in pertinent part at pp. 206-08: " . . . Q . . . Would you please describe what your observations were during Angie Schreiner's autopsy, please? A . . . Then, with respect to looking at her body externally, I noted that there were multiple superficial skin injuries that were present. Now, this was predominantly on her legs, so what I am talking about here essentially are on the legs, contusions that can be thought of as a bruise. . . . She had quite, quite a number of bruises on her legs. . . . She also had some superficial injuries, skin injuries on her hands. For example, on her right hand and on the middle finger, the tip of the nail was partially torn. On the palmer surface of the right hand she had a number of very small linear abrasions that I described as sharp to semi-sharp. . . . And then similarly on her left hand, here on the palmer surface of the left hand and over the base of the second finger, base of the third finger, base of the fifth finger, again just some tiny you can think of them as scratches. I just mean the very superficial scratch on the skin. On the back of her left hand there was bruising really over the surface of the back of all four of the fingers. So she had multiple superficial injuries on her hands and particularly on her legs. . . ." 3 Transcript of Jury Trial, April 5 to 7, 2010, Ronald F. Distefano testifying in pertinent part at pp. 210-11: ". . . Q Did you receive back a laboratory analysis of the samples you submitted for the testing? A I believe, yes, I believe you mean the toxicology samples? Q That's correct. . . . Okay. Would you relate the findings to the jury, please. A The toxicology screen was negative. So, that means that they did not find drugs or alcohol in her blood. . . ." 4 Transcript of Jury Trial, April 5 to 7, 2010, Ronald F. Distefano testifying in pertinent part at pp. 219-221: ". . . Q (BY MR. LAWRENCE) Doctor, based on your examination of Mrs. Schreiner's body, did you find anything that would cause you to believe that Mrs. Schreiner was unconscious at the point that she went underwear [sic]? A I did not. . . . Q (BY MR. LAWRENCE) Did you observe anything during the course of your autopsy that led you to believe that she was in fact not incapacitated? A By incapacitated I assume we mean that she was unconscious? Q That is correct. . . . THE WITNESS: So based on the negative toxicology screen, I would conclude that she was not unconscious as [sic] result of any drug or other substance. Based on the lack of finding of any head injury that might render a person unconscious, likewise, there is no evidence to suggest that she was unconscious. Q (BY MR. LAWRENCE) Did you during the course of your autopsy on Mrs. Schreiner come to a conclusion on whether Mrs. Schreiner attempted to extract herself from the vehicle? . . . THE WITNESS: Based on the information that I got about the death and the findings in the autopsy, I think likely she did struggle to get out of the vehicle. In part that is a consideration that comes from what I would call common sense meaning that the scene was that of a flood [ sic] roadway, a vehicle submerged in the water, and the person deceased inside the vehicle. . . So, when the vehicle went into the water and the lacking any head injury or drug intoxication reason that she might have been unconscious, I believe that anyone would attempt to get out of the vehicle. The presence of superficial injuries on her body may or may not have been sustained in such an attempt to get out of the vehicle. But given the number of them and the character, I think it's more likely than not that some of them, if not most, happened that way. . . . And then it would take at least some finite amount of time, probably on the order of minutes for unconsciousness to occur because of being submerged. . . . Q Now, obviously, we can't - we don't know what went on in Angie Schreiner's head in the vehicle at the time that she was submerging into the water, but based on all of the facts and the situation that you've described today, would - do you have an opinion on whether or not an individual within the frame of work of what we have been discussing have suffered pain during the time it took up to until losing consciousness? . . . THE WITNESS: Yes, I have an opinion. Q (BY MR. LAWRENCE) Would you give that opinion to the jury, please? A Well, based on what I said previous, I believe more likely than not there was some amount of pain and suffering that lasted in that limited time frame that it would have taken to first become unconscious and then subsequently drown. So during the time of consciousness, I would consider that pain and suffering. . . ." 5 Transcript of Jury Trial, April 5 to 7, 2010, Brandon Levi Schreiner testifying in pertinent part at pp. 157-58: ". . . Q Now, how old were you when your mom died: A I was 7 years old. . . . Q And once again could you remind the jury of your brothers and sisters' names. [sic] A There's Brittany Schreiner, she's my oldest sister. Brianna, she's the middle, Seth and Miranda are the two youngst [sic]. Q Do you recall how old they were when your mom passed away? A Not really. Bit I think, I think Brianna was like four, Seth like three or two, and Miranda was one. Q Could you just generally describe the house that you were living in at the point in time that your mom passed away? A It was a great home. . . ." 6 Transcript of Jury Trial, April 5 to 7, 2010, Charles Thomas West testifying in pertinent part at pp. 124-25: ". . . Q Well, did - you observed her parenting skills; isn't that correct? A Yeah, she was a good parent. She loved those kids. I mean she took, you know, amazing to me how she could do all she did and still take good care of those kids. . . . Q Do you have any idea what her future plans were? A Well, she had been talking to - they have those career fairs in school and she had been talking to a number of petro chemical firms about employment opportunities. . . . That's, like I say, one of the reasons she went into chemical engineering because as opposed to some other kind of engineering because the level of pay is very good. And she would have been a professional chemical engineer within a matter of months and on her way to a career with one of those companies had she lived. . . ." 7 Transcript of Jury Trial, April 5 to 7, 2010, Charles Thomas West testifying in pertinent part at pp.146-47: ". . . Q . . . Let's talk about the family after the funeral. Do you recall how old Brittany was when her mom died? A Brittany was, would have been 11 years old or so. Q And after Angie dies what living arrangements were made for Brittany? A Brittany and Brandon, pardon me, Brittany and Brandon and Brianna all went to live with their father. But that didn't work out very well because it overwhelmed him, so I took Brianna, the middle one, and she moved in with me. Brittany and Brandon continued to live with their father and their grandmother in Sand Springs and Brianna continues to this day to live with me. The two little ones, Seth and Miranda went to live with Angie's aunt and uncle, Vicki and Richard O'Neal. And I fixed up, rehabbed Angie's house and sold it to Richard and Vicki for the cost to have them, so they would have a place to live and they moved in there. And that was the living arrangement, so the family was broken up because there wasn't anybody that was able to take care of all five children and it was just, that was simply the best way to do it. . . ." 8 Transcript of Jury Trial, April 5 to 7, 2010, Brandon Levi Schreiner testifying in pertinent part at p. 164-65: ". . . Q How long did you live with your father? A I lived with my father from after my mother died until seventh grade, which I was, after seventh grade, I was 14, so. Q Where did you move to after that? A After I lived with my father, I moved up to my grandmother's house which was right up the street. Q Why did you move in with your grandmother? A Well, mainly because, because my dad's house was, he had a lot of cats and I was very allergic to cats, I still am. And some other stuff that was, that was in the environment down there. I don't know what I was allergic to down there, it may have just dust [sic] or something, but I always had puffy eyes and so my grandmother's house was just a better environment for me to be in. . . ." 9 Transcript of Jury Trial, April 5 to 7, 2010, Brittany Rose Schreiner testifying in pertinent part at pp. 174-75: ". . . Q Okay. What were your living arrangements after the funeral? I believe I understood both your grandfather and Brandon say that you moved in with your father as well -- A Yes. Q - for a period of time? What was that like for you? A It was a big change of lifestyles. Q How so? A Well, it was a lot more dysfunctional. My mom cooked dinners every night, you know, every single night and my dad, it was just kind of, you know TV dinner style things and my dad didn't keep a clean house. And my step-mom didn't like us and I mean it was -- Q You say she didn't like you. Do you have any reason for that perception or? A Well, she was always really mean to us. I remember a specific occasion when Brandon and I were really young and we were singing and she, and she tells us, she tells us, if you're going to sing, please sing on key, and we are like, we are children, you know. I mean she was always really just very cold to us. . . ." 10 Transcript of Jury Trial, April 5 to 7, 2010, Brittany Rose Schreiner testifying in pertinent part at p. 178: ". . . Q Okay. And you state that you saw Brianna and Seth and Miranda much less after you became separated, did the relationship change your interactions between each other and your feelings? A Well, I actually still saw Brianna quite a bit because I went to my grandpa's after school but it was Seth and Miranda that I really lost contact with. And no. I mean we didn't, we never had much of a relationship like we should have because they were so young. . . . Q Okay. Where was the last time you saw them? A Had to be at least a year ago. . . ." 11 Title 12 O.S. §1053 providing in pertinent part: "A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter . . . B. The damages recoverable in actions for wrongful death as provided in this section shall include the following: Medical and burial expenses . . . The mental pain and anguish suffered by the decedent . . . The pecuniary loss to the survivors based upon properly admissible evidence with regard thereto including, but not limited to, the age, occupation, earning capacity, health habits, and probable duration of decedent's life . . . The grief and loss of companionship of the children and parents of the decedent . . ." 12 Title 12 O.S. 2001 §651 providing in pertinent part: "A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party: . . . 4. Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice . . ." 13 Sligar v. Bartlett, 1996 OK 144, ¶13, 916 P.2d 1383; Propst v. Alexander, 1995 OK 57, ¶8, 898 P.2d 141; Austin v. Cockings, 1994 OK 29, ¶¶9-10, 871 P.2d 33; Rein v. Patton, 1953 OK 117, ¶¶19-20, 257 P.2d 280; Harper v. Pratt, 1943 OK 281, ¶3, 141 P.2d 562. 14 Rein v. Patton, see note 13, supra; Reyes v. Goss, 1951 OK 215, ¶11, 235 P.2d 950. 15 Rein v. Patton, see note 13, supra; Harper v. Pratt, see note 13, supra. 16 Sligar v. Bartlett, see note 13, supra; Propst v. Alexander, see note 13, supra. 17 The County also claims that West may not now complain about the amount of damages awarded when he did not request a specific amount for: grief; loss of companionship; parental care, training, guidance, and education; or pain and suffering. These damages are general in nature and are elements which cannot be fixed with an exact amount. Government Employees Ins. Co. v. Quine, 2011 OK 88, fn. 2, ___ P.3d __. The ascertainment of such damages are such as may be awarded when there is no measure which can be identified, except the judgment and opinion of a reasonable person. Hornstein v. Yarrington, 1925 OK 440, ¶5, 237 P. 73. Proving the precise amount of such damages is, by their very nature, almost impossible. Browning v. Ray, 1968 OK 52, ¶13, 440 P.2d 721. Where it is plainly apparent from the injury alone that the injured person must of necessity undergo pain and suffering, the jury may infer that fact from the injury itself. Blanke v. Alexander, 152 F.3d 1224 (10th Cir. 1998); Edwards v. Chandler, 1957 OK 45, ¶5, 308 P.2d 295. There is no absolute standard to measure damages. Even without demonstrating a loss of earnings, an award will be justified where the nature of the injury supports the same. Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶11, 455 P.2d 696. See also, Ellis v. Gurich, 2003 OK 47, 73 P.3d 860 [Order in which it was anticipated that there would be a request for an award for grief, loss of companionship, and the like, without the calling of an expert witness.]; Johnson v. Hillcrest Health Ctr., 2003 OK 16, ¶13, 70 P.3d 811 [Expert testimony unnecessary when issue within the common knowledge of lay persons.]; Stroud v. Arthur Andersen & Co., 2001 OK 76, ¶30, 37 P.3d 783 [Acknowledging that where damages could not be reduced to precise calculation, a range of damages could be submitted for consideration by the trier of fact]. 18 Clark v. Bearden, 1995 OK 71, ¶7, 903 P.2d 309 providing in pertinent part: ". . . The inadequacy or excessiveness of an award, and the passion and partiality inhering in it, must be so clear 'as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous.' Park v. Security Bank and Trust Company, 512 P.2d 113, 116 (Okla. 1973), and Fleming v. Baptist General Convention of Oklahoma, 742 P.2d 1087, 1098 (Okla. 1987), both quoting from Austin Bridge Co. v. Christian, 446 P.2d 46, 49 (Okla. 1968). . . ." [Italics in original.] 19 The Commissioners also rely on Dodson v. Henderson Properties, 1985 OK 71, 708 P.2d 1064, discussed in Clark v. Bearden, see note 18, supra. In addition, they cite to Battles v. Janzen, 1958 OK 94, 325 P.2d 444 in which the grant of a new trial was denied and affirmed by this Court. Just as Clark and Dodson, are distinguishable from the situation presented here, so is Battles, this note, supra. In Battles, the request for a new trial was for out of pocket expenses accrued because of treatment for injuries sustained in a car accident. In that case, we found that the doctor's testimony "estimating" his bill was insufficient to overturn the jury's verdict. The issue in Battles was whether the award of special damages was sufficient. Economic or special damages are defined as those which can either be assigned an exact dollar figure or calculated with reasonable mathematical certainty. Here, pain and suffering, are non-economic or general damages. Such damages cannot be fixed with an exact monetary amount. Government Employees Ins. Co. v. Quine, 2011 OK 88, fn. 2, ___ P.3d ___. See also, Browning v. Ray, 1968 OK 52, ¶13, 440 P.2d 721. Furthermore, just the nature of an injury may support an award of general damages without demonstrating the amount of the loss incurred. See, Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶11, 455 P.2d 696; Venable v. Burton, 1961 OK 132, ¶12, 363 P.2d 224. 20 Boatright v. Perkins, 1995 OK 34, ¶9, 894 P.2d 1091. 21 Shull v. Reid, 2011 OK 72,¶7, 258 P.3d 521; Holleyman v. Holleyman, 2003 OK 48, ¶7, 78 P.3d 921; State ex rel. Dept. of Human Services v. Baggett, 1999 OK 68, ¶22, 990 P.2d 235. 22 Belford v. Allen, 1938 OK 335, ¶0, 80 P.2d 671; Tackett v. Tackett, 1935 OK 907, ¶0, 50 P.2d 293. 23 See, Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, ¶13, 70 P.3d 811. 24 This characterization is low if you consider $10.00 times 40 hours per week times 52 weeks times 10 years which would total $208,000.00. 25 The totals reached in the minimum wage scenarios are estimated by utilizing the same formula presented in fn. 24, supra, utilizing figures for minimum wage from the United States Department of Labor. Web: http://www.dol.gov/esa/whd/flsa/ and www.infoplease.com. 26 Under the facts presented, we determine that the inadequacy or excessiveness of the award, in and of itself, evidences that the passion and partiality inhering in it are so clear as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous. We also note, as West argued, that damages, in all cases, must be reasonable. Title 23 O.S. 2001 §97 providing: "Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered." Where the evidence presented indicates that a jury's award is grossly inadequate, the trial court does not abuse its discretion by setting aside the verdict and granting a new trial. An appellate court will affirm a correct judgment on any applicable theory. Ethridge v. Neundorf, 1955 OK 143, ¶0, 283 P.2d 834. Nichols v. Nichols, 2009 OK 43, fn. 14, 222 P.3d 1049; Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶35, 977 P.2d 1040; Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, fn. 40, 917 P.2d 456. If legally correct, a trial court's ruling will not be reversed because of its faulty reasoning, erroneous finding of fact, or its consideration of an immaterial issue. Willis v. Nowata Land & Cattle Co., 1989 OK 169, ¶13, 789 P.2d 1282; Davidson v. Gregory, 1989 OK 87, fn. 23, 780 P.2d 679; Utica Nat'l Bank & Trust Co. v. Associated Producers Co., 1980 OK 172, ¶20, 622 P.2d 1061.

333b62f0-ad8c-43fa-81e9-b59ef572ce95

Gentges v. Oklahoma State Election Board

oklahoma

Oklahoma Supreme Court

GENTGES v. OKLAHOMA STATE ELECTION BOARD2014 OK 8Case Number: 111290Decided: 02/11/2014THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DELILAH CHRISTINE GENTGES, an individual, Plaintiff/Appellant,v.OKLAHOMA STATE ELECTION BOARD, Defendant/Appellee,andSENATOR BRIAN BINGMAN, in his official capacity as President Pro Tempore of the OKLAHOMA STATE SENATE, REPRESENTATIVE KRIS STEELE in his official capacity as the Speaker of the OKLAHOMA HOUSE OF REPRESENTATIVES, Intervenor Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYHONORABLE LISA TIPPING DAVIS, TRIAL JUDGE ¶0 Registered Voter brought an action against the State Election Board to prevent implementation of SB 692, commonly known as the Voter ID Act. Registered Voter contended the Legislature violated the Oklahoma Constitution by submitting the Voter ID Act to a popular vote without first presenting it to the Governor for veto consideration. Registered Voter also contended that requiring voters to present certain forms of identification in order to vote would "interfere to prevent the free exercise of the right of suffrage." Such interference is forbidden by Article 2, section 4 and Article 3, section 5 of the Oklahoma Constitution. After review of the parties' summary judgment paperwork, the trial court ruled (1) the Oklahoma Constitution does not require presentment of a legislative referendum to the Governor before the referendum is placed on the ballot for a vote, and (2) Registered Voter lacked standing. Upon appeal by Registered Voter, this Court retained the appeal. AFFIRMED IN PART; REVERSED IN PART. James C. Thomas, William D. Thomas, THOMAS LAW FIRM PLLC, Tulsa, Oklahoma for Plaintiff/Appellant,M. Daniel Weitman, Assistant Attorney General, Oklahoma City, Oklahoma for Oklahoma State Election Board, Defendant/Appellee,Lee Slater, James A. Williamson, Oklahoma City, Oklahoma for Brian Bingman, in his capacity as President Pro Tempore of the Oklahoma State Senate, Intervenor Defendant/Appellee,Ashley D. Kemp, General Counsel, Oklahoma House of Representatives, Oklahoma City, Oklahoma for Kris Steele in his capacity as Speaker of the Oklahoma House of Representative, Intervenor Defendant/Appellee, and Andrew W. Lester, Carrie L. Vaughn, Lester, Loving & Davies, P.C., Edmond, Oklahoma for Kris Steele in his capacity as Speaker of the Oklahoma House of Representatives, Intervenor Defendant/Appellee. REIF, V.C.J.: ¶1 Delilah Christine Gentges sued the Oklahoma State Election Board in the district court of Tulsa County to prevent implementation of SB 692, commonly known as the Voter ID Act.1 Ms. Gentges alleged she had standing as a taxpayer and as a registered voter in Tulsa County. The State Election Board specially appeared in the district court of Tulsa County and asked the court to dismiss this suit. The State Election Board contended Ms. Gentges lacked standing and Tulsa County was not the proper venue for a suit against a State agency. The district court of Tulsa County rejected these challenges and the State Election Board asked this Court to assume original jurisdiction to prohibit the district court of Tulsa County from proceeding further. This Court granted partial relief by ordering the district court of Tulsa County to transfer the case to the district court of Oklahoma County. ¶2 Following the transfer of the case to Oklahoma County, Ms. Gentges filed a motion for summary judgment. She asked the court to declare the Voter ID Act unconstitutional on the grounds that (1) the Legislature violated Article 6, Section 112 of the Oklahoma Constitution by not presenting the referendum designated SB 692 to the Governor for veto consideration prior to submitting it for a popular vote, and (2) the identification requirements "interfere to prevent the free exercise of the right of suffrage" that is prohibited by Article 2, Section 43 and Article 3, Section 54 of the Oklahoma Constitution. After review of the parties' summary judgment paperwork, the trial court ruled (1) the Oklahoma Constitution did not require presentment of a legislative referendum to the Governor before the referendum is placed on the election ballot for a vote and (2) Ms. Gentges "lacks standing." Upon review, we hold that Ms. Gentges does have standing to challenge the constitutionality of the Voter ID Act but find the Act was properly submitted for a popular vote. We remand for the trial court to determine whether the identification requirements "interfere to prevent the free exercise of the right of suffrage" and to decide Ms. Gentges' constitutional challenge to the venue requirement in 12 O.S.2011, § 133. ¶3 The parties agree that there are no material issues of fact in dispute on the issues of standing and the referendum. They further agree that only questions of law are presented for resolution. The issue of Ms. Gentges' standing is the first question of law to be determined. ¶4 The trial court's summary judgment order specifically decided one of the issues raised by Ms. Gentges' motion for summary judgment - whether the Oklahoma Constitution requires the Legislature to present a referendum, like SB 692, to the Governor for veto consideration prior to submitting the measure for a popular vote. The trial court ruled that "the Constitution does not require presentment of a legislative referendum to the Governor before the referendum is placed on the election ballot for a vote." In granting this declaratory relief the trial court must have necessarily concluded that Ms. Gentges had standing to litigate the issue of whether the Voter ID Act was validly enacted. In other words, she was not totally without standing. ¶5 The part of the trial court's summary judgment order that ruled Ms. Gentges "lacks standing" can only be read to apply to her complaint that the Voter ID Act would "interfere to prevent the free exercise of the right of suffrage." In challenging Ms. Gentges' standing to litigate this issue, the State Election Board argued that Ms. Gentges cannot rely on her status as a taxpayer to challenge the Voter ID Act, because the Voter ID Act involves no expenditure of public funds. In the absence of such a circumstance to support standing, the State Election Board has maintained that Ms. Gentges must show that she suffers injury from having to present a photo ID to vote. The State Election Board's summary judgment evidentiary material established that Ms. Gentges possesses a valid photo Oklahoma drivers license. The State Election Board insists that this undisputed fact demonstrates Ms. Gentges can easily comply with the Act without any additional burden upon, or injury to, either her right to vote or her act of voting. ¶6 The State Election Board is correct that Ms. Gentges' status as a taxpayer is not sufficient to support standing to challenge the Voter ID Act. However, her possession of a valid photo Oklahoma drivers license is no more relevant to her standing to challenge the constitutionality of the Voter ID Act than her financial means to pay a poll tax would be relevant to challenge a burden of that nature. ¶7 In cases where "[n]o government expenditure is challenged," this Court has recognized judicial discretion "[to] grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance." State ex rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96, ¶ 29, ¶ 31, 614 P.2d 45, 51 (citation omitted). This discretion is properly exercised to grant standing where there are "competing policy considerations" and "lively conflict between antagonistic demands." Id. at ¶¶ 37-38, 614 P.2d at 52 (citations omitted). ¶8 In addition, this Court has said "a suit may be brought [by a private party] challenging the legality of government action . . . if the plaintiff is the object of the action at issue." Oklahoma Public Employees Association v. Oklahoma Department of Central Services, 2002 OK 71, ¶ 16, 55 P.3d 1072, 1079. In such cases, "there is ordinarily little question that the action . . . has caused . . . injury, and that a judgment preventing or requiring the action will redress it." Id. ¶9 In the case at hand, the requirement that voters present certain types of identification at the time of voting is a new condition upon the exercise of the right of suffrage. The question of whether this new condition would "interfere to prevent the free exercise of the right of suffrage" is a matter of "great public importance" given the fact that "free exercise of the right of suffrage" is guaranteed by two provisions in the Oklahoma Constitution. The first provision - Article 2, § 4 - appears in the Bill of Rights and is a guarantee extended to "those entitled to such right." This Court has said the right to vote conferred upon a qualified elector by this constitutional provision is "a basic constitutional right." Sparks v. State Election Board, 1964 OK 114, ¶ 9, 392 P.2d 711, 713. The second provision - Article 3, § 5 - expresses a limitation on governmental power. The importance of this limitation is underscored by the observation in Sparks that: "To deprive a qualified elector of his [or her] right to vote, by law, would be contrary to the spirit of both Federal . . . and State Constitutions." Id., 392 P.2d at 713-714. ¶10 There can be no doubt that Ms. Gentges, as a registered voter, is within the class of "those entitled" to exercise the right of suffrage and has a basic constitutional right protected by Article 2, § 4. Members of this class (i.e., registered voters) are likewise the most logical parties to contest any conditions on the right to vote imposed by action of the Legislature, because registered voters are "the object of the action at issue." ¶11 Review of the summary judgment record also reveals this case involves "competing policy considerations" (i.e., preservation of the integrity of the election process by verifying the identity of those voting vs. the free exercise of the right of suffrage). Furthermore, the arguments advanced by Ms. Gentges and the State Election Board demonstrate "lively conflict between antagonistic demands." ¶12 The foregoing considerations lead this Court to conclude that Ms. Gentges has standing to vindicate both her personal interest and the public interest by challenging legislative action that may arguably "interfere to prevent the free exercise of the right of suffrage." Accordingly, we reverse the trial court ruling that Ms. Gentges "lacks standing" to challenge the Voter ID Act on the ground it would "interfere to prevent the free exercise of the right of suffrage." ¶13 We do not agree, however, with Ms. Gentges' contention that the provisions of SB 692 were not properly enacted as a referendum. Ms. Gentges insists that the fatal defect in the enactment of SB 692 lies in the Legislature's failure to present the measure to the Governor for veto consideration prior to its submission to a vote of the people. While she acknowledges that the Governor has no power to veto a referendum after it is approved by a vote of the people, she maintains that a bill proposing a referendum must be presented to the Governor for veto consideration prior to its submission for a popular vote. ¶14 Ms. Gentges relies on language in Article 5, § 2 of the Oklahoma Constitution that authorizes the Legislature to order a referendum "as other bills are enacted." Ms. Gentges further notes that Article 6, § 11 of the Oklahoma Constitution requires the Legislature's presentment and the Governor's veto consideration of "Every bill which shall have passed the Senate and House of Representatives." She points out that this Court has recently interpreted the "every bill" language in Article 6, § 12 (a related veto provision) to mean "any" and "all" bills. Coffey v. Henry, 2010 OK 4, ¶ 3, 240 P.3d 1056, 1057. ¶15 Despite the logical appeal of this analysis, its chief problem lies in giving literal meaning to the single word "every" and ignoring important qualifying language in Article 6, § 11. The complete text of the presentment clause in Article 6, § 11 reads: "Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor." The important qualifying language in question is "before it becomes a law." The complete text clearly indicates that presentment and veto consideration is required for "every bill" that "becomes law" through the Legislature's exercise of its granted sovereign power. This is not the only sovereign power by which law is made, however. ¶16 The first two sections of Article 55 of the Oklahoma Constitution reserve sovereign power to the people to make law by a process that is different from, and in addition to, the exercise of sovereign power granted to the Legislature. That process is by initiative and referendum. Sections 3 through 8 of Article 5 specify how this process is to be fulfilled. Section 3 of Article 56 prescribes a very different role for the Governor to play in this law making process than the role played by the Governor in the Legislature's law making process. In particular, section 3 commands that the Governor "shall submit [petitions and orders for initiatives and referendums] to the people" and expressly provides that "The veto power of the Governor shall not extend to measures voted on by the people." ¶17 As previously noted, Ms. Gentges acknowledges this limitation on the Governor's veto power, but contends it should be interpreted to apply only after a measure has been approved by the people. To support this interpretation, Ms. Gentges basically argues that the enactment of law without the check and balance of a veto violates the guarantee of a republican form of government set forth in Article IV, § 47 of the United States Constitution. Ms. Gentges believes that presentment and veto consideration prior to submitting a referendum to a vote of the people is the only way for the people to enact law consistent with a republican form of government. ¶18 Again, despite the logical appeal of this argument, settled law dictates that the check and balance of the veto is very much a part of a referendum ordered by the Legislature. In the case of In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, ¶ 29, 820 P.2d 772, 780, this Court cited approvingly Kadderly v. City of Portland, 44 Or. 118, 145-46, 74 P. 710, 720, for the principle that the power of the people "[to] veto or defeat bills passed and approved by the Legislature" is part of the republican form of government. This is particularly true of a referendum by Legislative order in which the Legislature merely recommends the people enact a particular measure. In such cases, the check and balance of the veto is preserved; it is simply exercised by the electorate, not the Governor. ¶19 The state of the record does not permit this Court to decide whether the identification requirements of SB 692 "interfere to prevent the free exercise of the right of suffrage." We note that Ms. Gentges' motion for summary judgment reserves this issue as a "factual question." Also, in their response to Ms. Gentges' motion for this Court to retain this appeal, the State Election Board and the Intervenors have argued that this reservation by Ms. Gentges prevents the "the substantive constitutionality of the Voter ID Act . . . from being reviewed for the first time in this accelerated appeal." ¶20 In remanding this issue to the trial court, however, we believe it provident to provide guidance to the trial court in resolving this controversy. We do so to ensure a complete record is made and because the decision resolving an alleged constitutional violation is reviewed de novo. See Fields v. Saunders, 2012 OK 17, ¶ 1, 278 P.3d 577, 579. ¶21 "When considering the constitutionality of an act of the legislature, all pertinent constitutional provisions must be considered together." Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶ 21, n.11, 184 P.3d 467, 476 (citing Tate v. Logan, 1961 OK 136, ¶ 5, 362 P.2d 670, 672). The free exercise protections of Article 2, § 4 and Article 3, § 5 must be considered with the Legislature's constitutional power to provide laws for conducting elections and to detect fraud in such elections set forth in Article 3, § 4 of the Oklahoma Constitution. This provision expressly provides that: "The Legislature shall prescribe the time and manner of holding and conducting all elections, and enact such laws as may be necessary to detect and punish fraud in such elections." (emphasis added). While the people have made it clear by constitutional command that they do not want the civil or military power of the State to interfere to prevent the free exercise of the right of suffrage, the people have made it equally clear by a coordinate constitutional command that they want the right of suffrage protected from fraud. Any assessment of the impact of statutory law on the exercise of the right of suffrage must accommodate both of these policies. ¶22 Also, laws governing the right to vote must "be reasonable and not destructive to some constitutional right." Swindall v. State Election Board, 1934 OK 259, ¶ 0, 32 P.2d 691 (syllabus 1). One test is whether the voting law "was designed to protect the purity of the ballot and not as a tool or instrument to impair constitutional rights." Sparks, 1964 OK 114, ¶ 13, 392 P.2d at 714. ¶23 This guidance in no way limits the issues nor precludes the trial court from considering other law or matters that may bear on the constitutionality of the Voter ID Act. It simply represents the baseline scrutiny the trial court must give to resolve this constitutional controversy. ¶24 Based on the foregoing consideration, we affirm the trial court's ruling that the Voter ID Act was validly enacted, but reverse the trial court's ruling that Ms. Gentges lacks standing to challenge the Voter ID Act on the ground that it violates the free exercise of suffrage provisions in the Oklahoma Constitution. We remand this case to the trial court to decide Ms. Gentges' constitutional challenges to the Voter ID Act and to the venue provision in 12 O.S.2011, § 133. AFFIRMED IN PART; REVERSED IN PART. ¶25 COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, and GURICH, JJ., concur. ¶26 KAUGER and COMBS (by separate writing), JJ., concur in result. FOOTNOTES 1 SB 692 was submitted to a vote of the people as State Question 746, Legislative Referendum 347. This measure was approved by a vote of the people November 2, 2010. Laws 2009, c.31, §§ 1-9. It is codified as 26 O.S.2011, § 7-114. 2 Article 6, § 11 states: Approval or veto of bills - Passage over veto - Failure to return bill. Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the Journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment. 3 Article 2, § 4 states: Interference with right of suffrage. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right. 4 Article 3, § 5 states: Free and equal elections - Interference by civil or military power - Privilege from arrest. All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace, be privileged from arrest during their attendance on elections and while going to and from the same. 5 The first two sections in Article 5, are as follows: § 1. Legislature - Authority and composition - Powers reserved to people. The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. § 2. Designation and definition of reserved powers - Determination of percentages. The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so proposed. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted. The ratio and per centum of legal voters hereinbefore stated shall be based upon the total number of votes cast at the last general election for the Office of Governor. 6 Article 5, § 3 states: Petitions - Veto power - Elections - Time of taking effect - Style of bills - Duty of legislature Referendum petitions shall be filed with the Secretary of State not more than ninety (90) days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures voted on by the people. All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. Any measure referred to the people by the initiative or referendum shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise. The style of all bills shall be: "Be it Enacted By the People of the State of Oklahoma." Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article. 7 U.S.C.A. Const. Art. IV § 4 states: Section 4. Republican Government Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. COMBS, J., with whom KAUGER, J., joins, concurring in result: ¶1 I concur in the majority opinion that the plaintiff in this case has standing to challenge the constitutionality of the Oklahoma Voter ID Act. I further concur in the majority opinion in that the Oklahoma Constitution does not require the Legislature to present a referendum, like SB 692, to the Governor for veto consideration prior to submitting the measure for a popular vote. ¶2 I additionally concur that the issue of the constitutionality of the Voter ID Act is not properly before this court for review at this time. The trial court's ruling reflects the only issues addressed were the plaintiff's lack of standing and that the Voter ID statute did not have to be presented to the Governor before it was submitted to a vote of the people. There is nothing in this record to reflect the trial court ruled on the issue of the facial constitutionality of the Voter ID Act. In truth and fact the record is very clear the trial court determined only two issues: 1) the plaintiff's standing or lack thereof; and 2) a finding that there is no constitutional requirement that a referendum be submitted to the Governor for consideration prior to a popular vote. ¶3 The majority, having determined the plaintiff has standing, remands this case to the trial court to address all remaining issues, including any issue concerning the merits of the Voter ID Act. I disagree, however, with the majority's attempt to frame the issues for the trial court on remand. The litigants should be allowed to try their case before the lower court without any indication what the appellate court would like to be considered. Our case law is clear: in a public law controversy this court is free to change the theory presented by the parties below and followed by the trial court.1 However this review must be based upon the record brought for review. ¶4 As this court stated in Russell v. Board of County Commissioners, 1997 OK 80, ¶ 10, 952 P.2d 492, 497: [w]hen resolving a public-law controversy, the reviewing court is generally free to grant corrective relief upon any applicable legal theory dispositive of the case. Appellate freedom to raise and settle public-law issues sua sponte is circumscribed not by arguments tendered by the parties but rather by the record brought for review. (Emphasis applied.) ¶5 Although I agree with the majority that the constitutionality of the Voter ID Act is of great public interest and any ruling of the trial court concerning the Act's constitutionality will be reviewed by this court using a de novo standard without deference to the decision of the trial court, that review must be based on the record. Here we have no decision by the trial court on this issue. The trial court order is silent as to the constitutionality of the Voter ID Act. The Attorney General's position assailing the deviation of our summary judgment procedure is well taken. There are only two issues before us at this time. ¶6 Addressing the facial constitutionality of the Voter ID Act without a record, evidentiary materials, or a final order is a precedent we should not set. The litigants should be allowed to fully litigate their respective positions without prior indication from this court as to what issues we feel are important to the discussion. To do otherwise, is to issue an advisory opinion and attempt to limit or at the least emphasize certain constitutional issues in the trial court. I would let the parties argue their respective positions and develop their own record without any specific direction as to issues by this court. FOOTNOTES 1 Jackson v. Oklahoma Memorial Hosp., 1995 OK 112, ¶ 5 , 909 P.2d 765 , 768; North Side State Bank v. Board of County Comm'rs of Tulsa County, 1994 OK 34 , 894 P.2d 1046 , 1050 n. 8; Schulte Oil Co., Inc. v. Oklahoma Tax Com'n, 1994 OK 103 , 882 P.2d 65 , 69 n. 8; Strelecki v. Oklahoma Tax Com'n, 1993 OK 122 , 872 P.2d 910 , 920 n. 66; Simpson v. Dixon, 1993 OK 71 , 853 P.2d 176 , 187 n. 55; McNeely, Matter of, 1987 OK 19, ¶ 4 , 734 P.2d 1294 , 1296; Reynolds v. Special Indem. Fund, 1986 OK 64, ¶ 14, 725 P.2d 1265 , 1270; Burdick v. Independent Sch. Dist. No. 52 of Oklahoma County, 1985 OK 49 , 702 P.2d 48 , 54 n. 10; McCracken v. City of Lawton, 1982 OK 63 , 648 P.2d 18 , 21 n. 11; Application of Goodwin, 1979 OK 106, ¶ 2, 597 P.2d 762 , 764; Special Indemnity Fund v. Reynolds, 1948 OK 14, ¶ 6, 188 P.2d 841 , 842.

a2f389d0-cbcf-49e6-a35f-53ba721e11a3

Berman v. Laboratory Corporation of America

oklahoma

Oklahoma Supreme Court

BERMAN v. LABORATORY CORPORATION OF AMERICA2011 OK 106Case Number: 107999Decided: 12/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SHEILA YVONNE BERMAN, Plaintiff/Appellant, v. LABORATORY CORPORATION OF AMERICA d/b/a LAB CORP, INC., Defendant/Appellee. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Plaintiff brought a negligence action against Defendant for inaccurately performing genetic DNA testing in a DHS paternity action. The trial court held Defendant was protected by the absolute litigation privilege pursuant to 12 O.S. 2001 §1443.1 and granted its motion for summary judgment. The Court of Civil Appeals affirmed the trial court. This Court previously granted certiorari. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; REVERSED AND REMANDED. Phillip P. Owens, II, Edmond, Oklahoma, for Appellant, Matthew L. Standard, Oklahoma City, Oklahoma, for Appellee. OPINION WATT, Justice: PROCEDURAL BACKGROUND ¶1 Plaintiff/Appellant Sheila Yvonne Berman sought assistance from the Oklahoma Department of Human Services (DHS), to determine paternity and to collect child support. She alleged Herbert White, Jr. was the father of her child. DHS brought an administrative action to determine paternity and arranged for Defendant/Appellee Laboratory Corporation of America d/b/a Lab Corp, Inc. (LabCorp) to conduct the DNA test. LabCorp reported White was not the father of Berman's child. The test was performed a second time with similar results. ¶2 After the DHS proceeding concluded, Berman submitted an envelope, purportedly containing White's DNA, to a different lab for DNA testing. This time the results were different, showing the DNA sample tested was that of the father of Berman's child. On September 20, 2006, Berman filed a paternity action in the District Court of Grady County against White. He was ordered to submit to another paternity test. The test results dated August 30, 2007, were virtually identical to the DNA sample contained on the envelope, and White was judicially determined to be the father of Berman's child on June 4, 2008. White appealed, and on June 19, 2009, the Court of Civil Appeals (COCA) affirmed the trial court in case number 105,961. White did not request certiorari review in this Court, and the mandate issued on July 23, 2009. ¶3 While the Grady County case was still pending, Berman filed this lawsuit on April 9, 2008, in the District Court of Oklahoma County, seeking money damages from LabCorp for the negligent testing of White's DNA sample in the DHS administrative proceeding. In her amended petition, Berman alleged, in part: 4. [T]he results of Test No. 1 indicated that White was not the biological father of Plaintiff's child. However, Defendant reported the wrong identification number for White with the results of Test No. 1. 5. [T]he results of Test No. 2 indicated again that White was not the biological father of Plaintiff's child. For Test No. 2, Defendant reported the correct identification number for White. However, Defendant used the same male DNA sample in both tests. 6. [I]n Test No. 1, Defendant negligently reported an incorrect identification number for White, which in turn, correlated to an incorrect DNA sample taken from another person. Due to Defendant's negligence, the results of Test No. 1 were incorrect. 7. [I]n Test No. 2, although Defendant reported the correct identification number for White, Defendant negligently used the same incorrect DNA sample used for Test No. 1. A different DNA sample, corresponding with White's correct identification number, should have been used in Test No. 2. Due to Defendant's negligence, the results of Test No. 2 were likewise incorrect. ¶4 Berman alleged that as a result of LabCorp's negligence, she suffered damages in excess of $10,000.00 for the "loss of past and future child support payments that White would have been required to pay, had the paternity test results been correct, showing White to be the biological father of Plaintiff's child." Berman alleged LabCorp had the duty of care of a "reasonably prudent professional in the paternity testing field" and that its actions constitute a breach of that duty. ¶5 LabCorp raised the affirmative defense that its conduct "may be absolutely and/or qualifiedly privileged" pursuant to 12 O.S. 2001 §1443.1.1 LabCorp later filed its motion for summary judgment which the trial court granted on January 11, 2010,2 relying on Hartley v. Williamson, 2001 OK CIV APP 6, 18 P.3d 355 (released for publication by Order of the Supreme Court).3 Berman appealed, and on March 2, 2011, COCA affirmed the trial court on the basis of privilege, stating at ¶7 of its opinion: In Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941, the Supreme Court confirmed that a publication or communication made during a proceeding authorized by law was privileged pursuant to 12 O.S. 2001 § 1443.1 from an action for libel or slander. Kirschstein extended the 'litigation privilege' recognized at common law to communications made prior to judicial or quasi-judicial proceedings if the statement had some relation to the proposed proceeding. In addition, Kirschstein holds that, if applicable, the privilege not only bars defamation claims but also claims for intentional infliction of emotional distress based on the same communication. Id. at ¶30, 788 P.2d at 954. Claims for negligence are barred as well. [emphasis added]. See Hartley v. Williamson, 2001 OK CIV APP 6, ¶15, 18 P.3d 355, 358 (approved for publication by the Supreme Court). ¶6 We granted certiorari on June 22, 2011. ISSUE PRESENTED ¶7 COCA declared the dispositive issue in this case to be: The dispositive issue in this appeal is whether an administrative proceeding conducted by DHS to determine paternity is a quasi-judicial proceeding. If so, then well-established case law extends a privilege to evidence offered during that proceeding and provides immunity to LabCorp from Berman's suit. However, the nature of the paternity proceeding has not been previously determined. [emphasis added.] ¶8 COCA found the DHS proceeding, conducted pursuant to 10 O.S. 2001 §89 to determine paternity, was a quasi-judicial proceeding authorized by law and that the evidence and communications of witnesses made during the proceeding were therefore privileged. Further, COCA held that even if LabCorp's test results were incorrect, they could not be the basis for a negligence claim by Berman, citing Pacific Employers Ins. Co. v. Adams, 1946 OK 86, ¶10, 168 P.2d 105, 106-07. Thus, according to COCA, a determination that the DHS proceeding was "quasi-judicial" in nature required a ruling that the privilege applied and summary judgment was properly granted. ¶9 We hold, however, that the privilege allowed by 12 O.S. 2001 §1443.1 is inapplicable to this case, and Kirschtein, supra, and Hartley, supra, are distinguishable under the facts. The issue in this case is whether LabCorp owed Berman a duty of care. If so, Berman stated a claim for negligence against LabCorp, unrelated to the publication of the lab results. We hold the trial court erred in granting summary judgment, and we reverse and remand this case to the trial court for trial. DISCUSSION ¶10 In Kirschstein v. Haynes, supra, we held, as a matter of first impression, that the absolute privilege which applied to communications which were made during a judicial proceeding also applied to those made preliminary to a proposed proceeding for defamation. This privilege was further extended in Kirschstein to bar the plaintiff's claim of intentional infliction of emotional distress because it was based on the same facts as the defamation claim. Relying on Kirschstein, COCA held in this case that the privilege under §1443.1 also extends to Berman's negligence claim because the communication was made in the context of a "quasi-judicial" proceeding. However, the facts of this case are insufficient to invoke the privilege under §1443.1. ¶11 In Kirschstein we clearly expressed the parameters of the §1443.1 privilege and its application to the other claims raised therein: [T]he absolute privilege acts not only to bar defamation actions, but those for intentional infliction of emotional distress when based on the same factual allegations as the defamation claim. 788 P.2d at 945 [emphasis added]. . . . Thus, when the claim for intentional infliction of emotional distress is based on the same factual underpinnings as a defamation claim for which the privilege applies, a claim for intentional infliction of emotional distress is also barred by the reach of the absolute privilege. 788 P.2d at 954 [emphasis added]. ¶12 While Kirschstein allows a defendant to raise the defense of the absolute privilege under 12 O.S. §1443.1 when sued for defamation, the present case does not involve a claim for, or raise allegations of, defamation.4 Berman sued LabCorp for negligence. ¶13 In Hartley v. Williamson, supra, a different COCA division held that the claims raised against the doctor by the plaintiff Mother, i.e., negligence, intentional infliction of emotional distress, deceit, and conspiracy to commit abuse of process, were based on what the doctor "testified" upon her review of the evidence. In Kirschstein the intentional infliction claim arose from the same circumstances as the defamation claim, i.e., a doctor's affidavit that the plaintiff gave birth to the appellant. In the present case, Berman's claims are based on allegations of LabCorp's negligence in performing the DNA tests, not on its negligent report of the results. ¶14 The communications in the preceding cases were determined to be privileged and to bar the plaintiffs' other claims because the claims were based on the relevant evidence5 from each case, i.e., the "same factual allegations" or the "same factual underpinnings" as the defamation claim. In this case, however, we cannot hold the communication was based on the evidence which is relevant to this case, i.e., the paternity and DNA sample of Herbert White. LabCorp tested the DNA of a completely different man and the communication was based on the evidence of a stranger to this case. Comparison of the lab results show, without doubt, that two different men were tested in these two proceedings. LabCorp was sued for negligence for allowing a different sample to be tested and reported. The privilege provides no protection against negligent conduct in performing paternity tests. ¶15 The negligence claim arises not out of LabCorp's communication to DHS, but out of LabCorp's conduct in the performance of its duties. Berman's pleadings which allege LabCorp's "negligent reporting" of the test results were necessary to show that different identification numbers were used with the same person's DNA sample. However, that sample did not come from White. EXISTENCE OF A DUTY ¶16 The elements of a claim for negligence are: 1) a duty owed by the defendant to protect the plaintiff from injury; 2) a failure to perform that duty; and 3) injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care. Smith v. Hines, 2011 OK 51, 261 P.3d 1129. Whether a duty exists is a question of law. Miller v. David Grace, Inc., 2009 OK 49, 212 P.3d 1223. We must examine the relationship between the parties to determine whether the law will impose a duty on the defendant to prevent foreseeable injury to the plaintiff. Specifically, does LabCorp owe Berman, as the parent seeking to prove the paternity of her child, a duty of care to conduct accurate DNA testing which was ordered by DHS for child support purposes? This issue is a matter of first impression in Oklahoma. ¶17 DNA, or genetic, test results have become a part of our body of evidence law in Oklahoma in modern times. The results have been admitted as evidence in Oklahoma courts in cases involving: a determination of heirship to a decedent's estate, Estate of Tytanic, 2002 OK 100, 61 P.3d 249; criminal proceedings to revoke a suspended sentence, Wortham v. State of Oklahoma, 2008 OK CR 18, 188 P.3d 201; and to prove paternity to prevent an Indian adoption case from moving forward without notice to the natural father. See Adoption of Baby Girl B, 2003 OK CIV APP 24, 67 P.3d 359. DNA evidence has also been used in criminal cases to exonerate wrongfully convicted criminal defendants in a murder case. See Gore v. State of Oklahoma, 2005 OK CR 14, 119 P.3d 1268. Moreover, our Legislature adopted the Uniform Parentage Act, 10 O.S. Supp. 2006, §§7700-101 to 7800, which specifically provides for genetic testing to determine parentage. See 10 O.S. Supp. 2006 §7700-501 through §7700-511. ¶18 The importance of reliable and accurate DNA test results cannot be overstated. This type of forensic evidence is becoming part of our jurisprudence, and this trend is not likely to end. Much stands in the balance of the lives of those relying on such test results to protect their legal rights in a court of law. Inaccurate results could deal a devastating blow to those who otherwise have no ability to prove their cases on their own. Without recourse against a negligent defendant, a plaintiff has no remedy. Berman stands in that position in her relationship with LabCorp. Inaccurate results proved fatal to her case in her DHS proceeding. She was forced to pursue further legal action at her own expense. Her risk was foreseeable, and LabCorp owed her a duty to prevent that risk of harm. ¶19 We, therefore, hold LabCorp owed a duty to Berman to perform accurate DNA testing for purposes of determining the paternity of her child. The trial court erred in granting summary judgment. We, therefore, reverse and remand this case for trial. ¶20 CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; REVERSED AND REMANDED. TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ. - concur WINCHESTER and REIF, JJ. - dissent FOOTNOTES 1 12 O.S. 2001 §1443.1 provides: A. A privileged publication or communication is one made: First. In any legislative or judicial proceeding or any other proceeding authorized by law; Second. In the proper discharge of an official duty; Third. By a fair and true report of any legislative or judicial proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or the officer, falsely imputes crime to the officer so criticized. B. No publication which under this section would be privileged shall be punishable as libel. 2 The order provides, in part: [T]he Court finds that undisputed material facts demonstrate that Defendant's conduct in this matter is not actionable because of the absolute litigation privilege. The Court was primarily persuaded by Hartley v. Williamson, 2001 OK CIV APP 6, 18 P.3d 355 (released for publication by Order of the Supreme Court). The Court did not reach the merits of Defendant's other arguments in favor of summary judgment because the Court's ruling disposes of the entire case. 3 In Hartley, a psychologist agreed to act as a court-authorized counselor in a custody dispute. The doctor testified that she believed, based on evidence she was shown, that the mother planned to flee the jurisdiction with her children before the court's ruling. She recommended that custody be given to the father. Because of her testimony, the mother sued the doctor for negligence, intentional infliction of emotional distress, deceit and conspiracy to commit abuse of process. The trial court granted the doctor's motion for summary judgment, finding her prior testimony to be immune from liability because of her status as a court-appointed expert. Relying on Kirschstein v. Haynes, supra, COCA held the immunity granted in defamation cases also applied to Mother's other claims because they arose from the same circumstances as a defamation claim and were "all founded on Doctor's testimony at a judicial proceeding." Hartley, 18 P.3d at 358. 4 Libel is defined at 12 O.S. 2011 §1441: Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends. 5 We held in Pacific Employers Ins. Co. v. Adams, 1946 OK 86, 168 P.2d 105, 196 Okl. 597, that for the absolute privilege to apply, the communication or publication must be relevant or material to the issues connected with the subject of inquiry. 168 P.2d at 106.

4193e655-e9a4-40b1-bde2-5d1259649f31

Jones v. Oklahoma

oklahoma

Oklahoma Supreme Court

JONES v. STATE2011 OK 105Case Number: 107379Decided: 12/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARY ROSHAWN JONES, Plaintiff/Appellant, v. STATE OF OKLAHOMA, ex rel., OFFICE OF JUVENILE AFFAIRS, Defendant/Appellee. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION III Honorable Deborah Shallcross, Trial Judge ¶0 The plaintiff/appellee, Mary Roshawn Jones was a classified state employee. She was terminated from her employment after a hearing, but did not exhaust her administrative remedies. Instead, she filed a civil suit against the State of Oklahoma Office of Juvenile Affairs (OJA) alleging wilful violations of 40 O.S. Supp. 2010 §551 et seq., the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (SWDATA). The OJA filed a motion for summary judgment, contending that Jones had to exhaust her administrative remedies prior to bringing action under SWDATA. The trial court granted the OJA's motion. The employee appealed. The Court of Civil Appeals affirmed the trial court. The provisions of SWDATA, construed in their entirety, do not require the exhaustion of administrative remedies prior to the filing of a civil action by a classified state employee. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED. Charles C. Vaught, Kevin S. Marritt, Tulsa, Oklahoma, for Plaintiff/Appellant. Lisa Erickson Endres, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendants/Appellees. KAUGER, J.: ¶1 The first impression issue presented here is whether the provisions of the Oklahoma Standards for Drug and Alcohol Testing Act (SWDATA), 40 O.S. §§551-563 permit a classified state employee to file an action in district court prior to the exhaustion of administrative remedies. We hold that SWDATA provides an independent cause of action which authorizes a classified state employee to file an action in the district court for a wilful violation of the act without first exhausting the employee's administrative remedies. FACTS ¶2 The plaintiff/appellant, Mary Roshawn Jones (Jones/employee), was a full-time, classified employee of the defendant/appellee, Oklahoma Office of Juvenile Affairs (OJA/employer), working at the L.E. Rader Center (Center). On May 3, 2007, Jones was bitten by a spider while at work. On May 8, 2007, Jones sought medical treatment for the spider bite, at the Center. Jones and Linda R. Flood, R. N., an employee of the Center, signed a Document entitled "Employee Accident Evaluation Report" and attached to this form was "An Authorization to Treat Form."1 The box on the form indicating that drug testing was required was blank. On May 17, 2007, Jones signed the OJA Report and Review of Job-Related Accidental Injury or Illness. Employee checked the "no" box on the form when asked if she was asked to submit to a drug test as a result of this accident. ¶3 The time lines of the actions of both employee and employer from Jones' return to work until she took a drug test on June 26 are convoluted. The OJA alleges that they repeatedly tried to get Jones to complete paperwork relating to her work-related injury. The OJA also alleges that Jones' delay in completing the paperwork resulted in the delay in requesting the drug test. The deposition of the OJA risk manager, Thomas Micah, states that the reason Jones was required to be drug tested was because she sought medical treatment for the spider bite.2 Jones alleges that the reason for the required drug test were a series of harassing and threatening calls to the Center by a former boyfriend. ¶4 On June 26, 2007, at 1:30 p.m., the employee was told to report to Concerta, an approved Board of Health drug sample collection facility. The records of Concerta indicate that Jones gave four urine samples, but they were all insufficient for testing. She could not provide a sufficient test sample within the requisite time period and left the testing facility.3 Jones states that she had drug tests on June 27, 2007, and June 29, 2007, and that both were negative. ¶5 On July 20, 2007, Ms. Jones received Notice of Proposed Action-Discharge. After an OJA hearing, the employee was discharged, effective August 15, 2007. She filed no administrative appeal from the discharge with the Merit Protection Commission. ¶6 On January 14, 2008, Jones filed a civil case, alleging violations of 40 O.S. Supp. 1993 §551 et seq.; she sought compensatory and punitive damages and lost wages, or, in the alternative, restoration to employment. The defendant filed a motion for summary judgment, which was granted on June 30, 2009. The trial court, in part,4 based this decision on Jones failure to exhaust her administrative remedies. The Court of Civil Appeals affirmed the trial court, holding that if an employer provides an administrative remedy, then the employee must exhaust all of the employer's internal administrative remedies before bringing a civil action under SWDATA. We granted certiorari to address the exhaustion requirement. ¶7 THE OKLAHOMA STANDARDS FOR WORKPLACE DRUG AND ALCOHOL TESTING (SWDATA) DO NOT REQUIRE A CLASSIFIED STATE EMPLOYEE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO INSTITUTING AN ACTION IN DISTRICT COURT. ¶8 Jones did not exhaust her administrative remedies; she brought an action in the district court, seeking compensatory damages, lost wages and punitive damages, or, in the alternative, restoration to employment, alleging a violation of 40 O.S. Supp. 1993 §563 (A) which provides: A. Any person aggrieved by a wilful violation of the Standards for Workplace Drug and Alcohol Testing Act may institute a civil action in a court of competent jurisdiction within two (2) years of the person's discovery of the alleged wilful violation or of the exhaustion of any internal administrative remedies available to the person, or be barred from obtaining the relief provided for in subsection B of this section. B. A prevailing party may be awarded declaratory or injunctive relief and compensatory damages which may include, but not be limited to, employment, reinstatement, promotion, the payment of lost wages and other remuneration to which the person would have been entitled and payment of and reinstatement to full benefits and seniority rights. Reasonable costs and attorney fees may be awarded to the prevailing party. [Emphasis added.] ¶9 Jones argues that the provisions of 40 O.S. Supp. 1993 §563 permit her to file an action in district court without the prior exhaustion of administrative remedies. She interprets the statute to provide the litigant with a choice between the exhaustion of administrative remedies prior to the filing of a civil action or the filing of an action within two years of the date of the alleged date of the violation of the act without exhausting the administrative remedies. ¶10 The employer argues that the provisions of 40 O.S. Supp. 1993 §563 must be construed in tandem with the statutory provisions set forth at 74 O.S. Supp. 1995 §840-6.7 5 (originally codified in 1984) and the case law that requires the exhaustion of administrative remedies before a discharged classified employee may bring action in the district court. ¶11 The OJA has enacted, pursuant to the Administrative Procedures Act, a Drug Policy.6 The policy is designed to maintain an alcohol and drug free work environment and to test job applicants and employees for the illegal use of drugs.7 It provides that post accident testing may be required if an employee has sustained a work-related injury.8 An employee's refusal to test is grounds for discipline, up to and including discharge.9 A terminated employee has grievance and appeal rights, as provided by the OJA Rules and the Oklahoma Merit Protection Commission.10 ¶12 It has long been established in Oklahoma that exhaustion of administrative remedies is a jurisdictional prerequisite for resort to the courts by an employee of the State when that employee seeks redress under the statutes that govern the discipline and termination of classified state employee. 11 The rule requiring exhaustion of administrative remedies is designed to aid in the orderly administration of justice and to prevent transfer to the courts of duties imposed by law on administrative agencies.12 These are well established tenants of the laws relating to the termination of the employment of a classified State employee. ¶13 SWDATA was enacted by the Legislature, almost ten years after the original codification in 1984 of the statute requiring the exhaustion of administrative remedies, 74 O.S. Supp. 1995 §840-6.7. SWDATA is one of numerous Federal and state statutes governing employee drug testing enacted in the 1980's and the 1990's. Drug testing statutes were enacted to balance the employee's constitutional rights and the movement for a drug free workplace.13 SWDATA provides a cause of action open to both public and private employees in the State of Oklahoma if the provisions of the act concerning regulated employee drug testing are wilfully violated.14 SWDATA is designed to protect both the rights of the employer and the rights of the employee. It is a specific act that must be construed alongside the general statutory provisions concerning the termination of classified State employees. ¶14 Where a matter is addressed by two statutes, one specific and the other general, the specific statute governs over the general provision.15 Title 40 O.S. Supp. 1993 §563 (A) is a specific statute granting a public employee the right to bring an action under SWDATA if a wilful violation of rights is alleged. It was passed by the legislature almost ten years after 74 O.S. Supp. 1995 §840-6.7. The provisions of the specific statute granting the state employee a specific right control over the general exhaustion of remedies statute. ¶15 The intent expressed by the SWDATA language also supports the contention that this is a stand - alone, specific and controlling statute. Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each.16 The Court presumes that the Legislature expressed its intent and that it intended what it expressed. 17 Statutes are interpreted to attain that purpose and end18 championing the broad public policy purposes underlying them.19 Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.20 SWDATA is designed to protect the rights of the employee and the employer when there is employee drug testing. The provisions of 40 O.S. Supp. 1993 §563 (A) create an action only when there is a wilful violation of the act. The original title of the act too, reinforces this argument.21 It shows that SWDATA was clearly designed as a stand alone legislative act that was enacted to protect employee rights, not to limit them. 22 ¶16 The Legislature modified 40 O.S. Supp. 2011 §563, effective November 1, 2011. The new language is clear and concise and it provides that any person aggrieved by a wilful violation of the Standards for Workplace Drug and Alcohol Testing may bring a civil action within one (1) year of the alleged violation. 23 This is clearly an action by the legislature to provide to all employees a specific remedy for a specific statutory violation. The language as to exhaustion of administrative remedies has been removed altogether. The new provisions of SWDATA are clearly designed to simply limit the time an action may be brought, as do the old provisions of 40 O.S. Supp. 1993 §563. ¶17 SWDATA offers a cause of action for its wilful violation to employees in both the public and the private sectors of employment. This is a specific cause of action separate from the remedies provided for under the Administrative Procedures Act; the remedies available to Jones under SWDATA, differ from the remedies available to Jones under 74 O.S. Supp. 1995 §840-6.6.24 It is the statement of the Legislature on the rights of an employee, either public or private, when the employer demands the employee's bodily fluids for testing and wilfully violates the statutory requirements for such a demand. It is a specific statute for a specific and limited circumstance. ¶18 The employer also argues that the use of the word "or" in 40 O.S. Supp. 1993 §563 (A)25 operates only to create a tolling provision to stop the statute of limitations from running and that Jones must still exhaust her administrative remedies prior to commencement of an action in district court. This contention is not supported by the basic rules of statutory construction which require that a statute be given its plain meaning.26 The ordinary and common definition, the plain meaning of the word "or," implies a choice of A or B. 27 Actions for wilful violation of SWDATA must therefore be filed either within two years of the alleged wilful violation or after the exhaustion of internal administrative remedies. CONCLUSION ¶19 The version of this statute at the time litigation was commenced is a specific statute enacted after the general statute relating to exhaustion of remedies in classified state employee discharge. The legislative intent, expressed by a reading of the act as a whole and a review of the original title, provides that a state employee may file an action under the act without exhaustion of her administrative remedies. The Act, when read as a whole, offers a specific right of suit in a specific and limited situation. ¶20 OJA's motion for summary judgment was sustained because the employee failed to exhaust her administrative remedies. We hold that SWDATA, specifically 40 O.S. Supp. 1993 §563 does not require the exhaustion of administrative remedies prior to the filing of an action in district court. We express no opinion on the merits of the cause of action. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED. COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, AND GURICH, JJ., concur. TAYLOR, C.J., AND WINCHESTER, J., dissent. FOOTNOTES 1 Employee Accident Evaluation Report/Authorization to Treat Form, Exhibit 4 of the Defendant's Reply in Response to Motion for Summary Judgment filed in the District Court of Tulsa County on May 19, 2009. 2 Deposition of Thomas Micah, Exhibit 7 of the Defendant's Reply to Response to Motion for Summary Judgment filed in the District Court of Tulsa County on May 19, 2009. 3 Exhibit 9 of the Defendant's Motion for Summary Judgment filed in the District Court of Tulsa County on February 19, 2009. 4 The trial court in the Journal Entry sustaining the defendant's Motion for Summary Judgment also found that: 1) SWDATA allows for post accident drug testing; 2) defendant's drug testing policies are in accordance with 440 (sic) §554; and 3) The defendant is not liable for any tort by First Advantage Screening because 51 O.S. §155(18) provides immunity to the State. Appellant's Petition in Error states that the appellate issues include whether there were questions of factual dispute that would require the denial of summary judgment. There were several factual issues not considered by the trial court. 5 Title 74 O.S. Supp.1995§840-6.7 provides in pertinent part: ....The findings of the administrative hearing officer shall be final regarding all questions of law within their jurisdiction except as provided in the Administrative Procedures Act. After exhausting all remedies under the Administrative Procedures Act, either party to an appeal of demotion, suspension, or discharge may appeal to district court within thirty (30) calendar days. This statute was originally codified in 1984, but has been amended numerous times. 6 Exhibit 4 of the Defendant's Motion for Summary Judgment filed in the District Court of Tulsa County on February 19, 2009. 7 Rule 377:3-11-1, 20 Okla. Reg. 1293 (7-1-03). 8 Rule 377:3-11-5, 20 Okla. Reg. 1293 (7-1-03). 9 Rule 377:3-11-9, 20 Okla. Reg. 1293 (7-1-03). 10 Rule 377:3-11-11, 20 Okla. Reg. 1293 (7-1-03). 11 Martin v. Harrah Independent School District, 1975 OK 154, ¶ 7, 543 P.2d 1370. See also Daffin v. State ex rel Oklahoma Department of Mines, 2011 OK 22,¶10, 251 P.3d 741; Sanders v. Oklahoma Employment Security Commission, 1948 OK 116, ¶ 20, 195 P.2d 272, 276; Speaker v. Board of County Com'rs of Oklahoma County, 1957 OK 100, ¶6,312 P.2d 438, 439. 12 Martin v. Harrah Independent School District, at ¶ 8, see note 11 supra. 13 Leslie Benware, But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-Sector Safety-Sensitive Employees in Light of House Bill 2210, XLIV Suffolk U. L. Rev. 477, 478-503 (2011). 14 Title 40 O.S. Supp. 1993 §§ 552, 563. 15Atkinson v. Gurich 2011 OK 12, ¶14, 248 P.3d. 356, 361, Duncan v. Oklahoma Department of Corrections., 2004 OK 58, ¶6, 95 P.3d 1076, 1079, Milton v. Haynes, 1989 OK 12, ¶7, 770 P.2d 14, 15. 16 Clifton v. Clifton, 1990 OK 88, ¶7, 801 P.2d 693, 696, Maule v. Indep. Sch. Dist. of Oklahoma Cnty. 185 OK 110, ¶11, 714 P.2d 198, 203, Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm's, 1988 OK 117, ¶7,764 P.2d 172, 179. 17 King v. King, 2005 OK 4, ¶ 22, 107 P.3d 570, Fuller v. Odom, 1987 OK 64, ¶4, 741 P.2d 449, 453; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132, 134. 18 King v. King, at ¶ 22 see note 17 supra., Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800, 803, rehearing denied (1995), cert. denied, 517 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995); Wilson v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶5, 594 P.2d 1210, 1212. 19 See King v. King, at ¶ 22 note 17 supra, State ex rel. Dept of Human Serv. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824, 827, Matter of Estate of Flowers, 1993 OK 19, ¶11, 848 P.2d 1146, 1151. marker0fn020 See King v. King, at ¶ 22 see note 17 supra, Haggard v. Haggard, 1998 OK 124, ¶1, 975 P.2d 439, 442; Price v. Southwestern Bell Tel. Co., 1991 OK 50, ¶7, 812 P.2d 1355, 1358. marker0fn021 The title of an act may be used to determine legislative intent. Atkinson v. Halliburton Co., 1995 OK 104, ¶ 17, 905 P.2d 772. 22 Standards for Workplace Drug and Alcohol Testing Act, , Ch. 355, 1993 Okla. Session Law Serv., (codified as 40 O.S. §§ 551-563: An Act relating to labor; amending 3A O.S. 1991, Section 204, as last amended by Section 17, Chapter 364, O.S.L. 1992 (3A O.S. Supp. 1992, Section 204), which relates to powers of Horse Racing Commission; creating Standards for Workplace Drug and Alcohol Testing Act; providing short title; defining terms; construing act; requiring employers choosing to conduct drug or alcohol testing to comply with act and rules; exempting testing pursuant to federal law or regulation; allowing negotiation of collective bargaining agreements that provide greater protection than act; stating circumstances under which employer may choose to conduct drug or alcohol testing; prohibiting drug or alcohol testing unless employer adopts written policy and stating information to be included in policy; requiring certain notice to employees; requiring policy and changes be posted and given to certain persons; requiring testing occur during certain time period and deeming such time as work time; requiring employer to pay costs of testing with certain exception; requiring State Board of Health to implement and enforce act and promulgate rules for licensure, regulation, minimum testing standards and procedures; requiring rules be consistent with certain federal laws and regulations and include certain safeguards, standards and procedures with certain exception; requiring certain testing facilities be licensed by Board and requiring promulgation of certain rules; setting maximum licensure fee; providing for administrative fine for unlicensed facilities; stating conditions for sample collection and testing; making certain records and information confidential and prohibiting their use in certain proceedings with certain exception; making certain records property of employer; limiting availability of records to certain persons under certain conditions; prohibiting disclosure of certain information; requiring employer provide drug and alcohol assistance program if providing testing under this act and specifying such program; prohibiting disciplinary action based on positive test with certain exceptions and unless certain conditions are met; allowing disciplinary action for refusal to undergo testing; considering certain action as discharge for misconduct; stating statute of limitation; authorizing prevailing party be awarded certain relief, compensatory damages and certain costs and fees; providing penalties; prohibiting implementation of drug or alcohol testing programs after certain date unless in compliance with act and rules; providing certain date for compliance by programs currently in effect; disqualifying certain discharged employees from eligibility for unemployment compensation benefits; requiring certain testing be in compliance with act after certain date; providing for codification; and declaring an emergency. 23 Title 40 O.S. 2011 §563(A) provides: A. Any person aggrieved by a willful violation of the Standards for Workplace Drug and Alcohol Testing Act may institute a civil action in a court of competent jurisdiction within one (1) year of the alleged willful violation or be barred from obtaining the relief provided for in subsection B of this section. A willful violation of the Standards for Workplace Drug and Alcohol Testing Act requires proof by the preponderance of the evidence that the employer had a specific intent to violate the act. B. A prevailing party may be awarded lost wages to which the person would have been entitled and an additional equal amount as liquidated damages. Interim earnings or amounts earnable with reasonable diligence by the aggrieved person shall operate to reduce the lost wages otherwise allowable. Reasonable costs and attorney fees may be awarded to the prevailing party, whether plaintiff or defendant. 24 Title 74 O.S. Supp. 1995 § 840-6.6 provides: A. Any person who believes that his or her rights under the Oklahoma Personnel Act, Section 840-1.1 et seq. of this title, have been violated may appeal to the Oklahoma Merit Protection Commission for corrective action. `B. Excluding the procedures set forth in Section 840-6.5 of this title, the Executive Director shall conduct preliminary investigations of possible violations of the Oklahoma Personnel Act. The Executive Director shall prepare a report of each such investigation stating the issues and findings of fact. If it is the determination of the Executive Director that a violation of the Oklahoma Personnel Act or the Merit System of Personnel Administration Rules may have occurred, the Executive Director shall, within ten (10) calendar days after the date of the report, appoint an administrative hearing officer to hear the case or refer the case to the Alternative Dispute Resolution Program, as appropriate and provided for by law. If the appeal is to be heard by an administrative hearing officer, the Executive Director shall notify the appellant and the appointing authority of the date, time, and place of the hearing in accordance with the provisions of Section 840-6.7 of this title. Such hearing shall be conducted within thirty-five (35) calendar days of the date of the investigative report unless continued for good cause. Any continuances shall not exceed a combined total of sixty (60) calendar days except for good cause shown. The prehearing conference and hearing shall be conducted in accordance with the provisions of Section 840-6.7 of this title. If it is determined a violation has occurred, the Commission or presiding official shall: 1. Direct the appointing authority to take the necessary corrective action; or 2. Report the finding to the appropriate authorities for further action. Corrective action shall be confined to issues submitted for decision and shall be consistent with applicable laws and rules and limited to actions specifically granted to the Oklahoma Merit Protection Commission and presiding official in the Oklahoma Personnel Act and shall not alter, reduce, or modify any existing right or authority as provided by statute or rule. C. The following procedures shall pertain to the closing of a hearing or Alternative Dispute Resolution Program proceeding record: 1. When a hearing or Alternative Dispute Resolution Program proceeding is convened, the record will close at the conclusion of the hearing or Alternative Dispute Resolution Program proceeding unless otherwise specified by the presiding official; 2. When a hearing or Alternative Dispute Resolution Program proceeding is not convened, the record will close on the date set by the presiding official as the final date for the receipt of submissions of the parties; and 3. Once the record is closed, no additional evidence or argument shall be considered except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record. 25 Title 40 O.S. Supp. 1993 §563(A), see page 5-6. 26 Curtis v. Board of Educ. of Sayre Public Schools, 1995 OK 119, ¶ 10, 914 P.2d 656 provides: The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed in a statute. [W] here the language of a statute is plain and unambiguous and the meaning clear and unmistakable ,there is no room for construction, and no justification exists for interpretative devices to fabricate a different meaning. In the absence of a contrary definition, words in a statute are to be given the same meaning as that attributed to them by ordinary and common definitions. 27 Lommasson v. School Dist. No. 1 , Multnomah County, 201 Or. 71, 261 P.2d 1105, 864 (1953). Opinion withdrawn in part on re hearing by Lommasson v. School Dist. No. 1, Multnomah County, 201 Or. 71, 267 P.2d 1105 (Or. Mar 10, 1954): [There is no justification for using 'or' and meaning 'and', unless the failure to do so would leave a statute meaningless or absurd. Generally the words 'and' and 'or' are not interchangeable being strictly of a conjunctive or disjunctive nature, respectively, and their ordinary meaning will not be followed if it does render the sense of the statute dubious or circumvent the legislative intent.]

f14d50e1-9e58-4216-85b6-38ac1476d9bc

Oklahoma State Chiropractic Indep. Physicians Assoc. v. Fallin

oklahoma

Oklahoma Supreme Court

OKLAHOMA STATE CHIROPRACTIC INDEPENDENT PHYSICIANS ASSOC. v. FALLIN2011 OK 102Case Number: 109807Decided: 12/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA STATE CHIROPRACTIC INDEPENDENT PHYSICIANS ASSOCIATION, an Oklahoma Corporation, and J. DAN POST, Doctor of Chiropractic, and BRAD M. HAYES, Doctor of Chiropractic, on behalf of themselves and all of those similarly situated, Petitioners, v. THE HONORABLE MARY FALLIN, in her Official Capacity only as Governor of the State of Oklahoma, THE HONORABLE E. SCOTT PRUITT, in his Official Capacity only as Attorney General of the State of Oklahoma; and THE HONORABLE MICHAEL J. HARKEY, THE HONORABLE ERIC W. QUANDT, THE HONORABLE GENE PRIGMORE, THE HONORABLE CHERRI FARRAR, THE THE HONORABLE JOHN M. MCCORMICK, THE HONORABLE KENT ELDRIDGE, THE HONORABLE BOB LAKE GROVE, THE HONORABLE WILLIAM R. FOSTER, JR., THE HONORABLE DAVID REID, and THE HONORABLE OWEN T. EVANS, each in his or her Official Capacity only as Presiding Judge, Vice Presiding Judge and Judges of the Workers' Compensation Court of the State of Oklahoma, Respondents. COMBINED APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR DECLARATORY RELIEF, OR ALTERNATIVELY, PROHIBITION. ¶0 The Oklahoma State Legislature enacted a new Workers' Compensation Code, effective August 26, 2011. 85 O.S. § 329 provides that an independent medical examiner may only be a licensed medical doctor or a licensed doctor of osteopathy. 85 O.S. § 329(J) provides that if the court does not follow the opinion of the independent medical examiner on any issue, the Court shall set out its reasons for deviating from the opinion of the independent medical examiner. The opinion of the independent medical examiner shall be followed unless there is clear and convincing evidence to the contrary. Original Jurisdiction was sought before this Court to consider the constitutionality of this new legislation. APPLICATION TO ASSUME ORIGINAL JURISDICTION PREVIOUSLY GRANTED; OFFENDING STATUTES ARE FOUND TO BE UNCONSTITUTIONAL, AND APPLICABLE PORTIONS ARE HEREBY SEVERED. John C. McMurry, Oklahoma City, Oklahoma, for Petitioners. Martha R. Kulmacz, Assistant Attorney General, Oklahoma City, Oklahoma, for Respondents. COMBS, J. ¶1 Two chiropractors, Daniel Post, D.C., and Brad M. Hayes, D.C., and the Oklahoma State Chiropractic Independent Physicians Association (Chiropractors) filed an application requesting that this Court assume original jurisdiction and declare portions of 85 O.S. §§ 329 and 333 to be unconstitutional. The legislature enacted a new Workers' Compensation Code, effective August 26, 2011. 85 O.S. § 329 provides that an independent medical examiner may only be a licensed medical doctor or a licensed doctor of osteopathy. 85 O.S. § 329(J) provides that if the court does not follow the opinion of the independent medical examiner on any issue, the Court shall set out its reasons for deviating from the opinion of the independent medical examiner. The opinion of the independent medical examiner shall be followed unless there is clear and convincing evidence to the contrary. ¶2 85 O.S. § 333(A) provides that any claim by an employee for compensation for permanent partial impairment must be supported by competent medical testimony of the treating physician who is a medical doctor or a doctor of osteopathy, or a qualified independent medical examiner (which, according to 85 O.S. § 329, must be either an M.D. or D.O.). ¶3 The Chiropractors claim that they have standing to raise this issue because they are aggrieved parties and because they are excluded from the workers' compensation system. The Chiropractors state they have been permitted to be independent medical examiners in the past, and their reports have been used to support claims for permanent partial disability.1 Under the enacted 2011Workers' Compensation Code, chiropractors can be treating physicians but not Qualified Independent Medical Examiners. The Chiropractors also argue that this Court should assume original jurisdiction, rather than the district court, because this case presents a question of public importance and there is urgency, due to the fact that the provisions became effective on August 26, 2011. Additionally, the Chiropractors correctly point out that declaratory relief may be sought in an original action in this Court, citing Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605. ¶4 The Chiropractors also claim that these provisions violate the separation-of-powers clause in the Oklahoma Constitution (Art. IV, § 1)2 . Chiropractors assert these provisions, which exclude Chiropractors from being independent medical examiners, and which require that claims be supported by reports from M.D.s or D.O.s, encroach upon the discretion of the Workers' Compensation Court to determine a claim. The Chiropractors further contend that 85 O.S. § 329(J), which requires the opinion of an independent medical examiner be followed unless there is clear and convincing evidence to the contrary, also infringes upon the Workers' Compensation Court's discretion in determining whether a claim exists. ¶5 The Chiropractors additionally assert that 85 O.S. §§ 329 and 333 are special laws in violation of Art. V, §§ 463 and 594 of the Oklahoma Constitution. The Chiropractors claim that these statutes, which require medical proof to be supplied by an M.D. or D.O., treats M.D.s and D.O.s differently from Chiropractors. Under 85 O.S. §§ 329 and 333, M.D.s and D.O.s enjoy this special treatment not granted to non-M.D. and D.O. physicians such as chiropractors. The Chiropractors argue that there is no valid reason to distinguish between M.D.s and D.O.s,, and other physicians. They assert there is no rational basis to differentiate in the workers' compensation context because the Chiropractors' primary area of expertise is the musculo-skeletal system, such as the back, neck, or extremities. In 2010, 20.7% of the workers' compensation claims concerned the claimant's back. The Chiropractors ask that this Court assume original jurisdiction, and hold certain portions of 85 O.S. §§ 308, 326, 329, 332 and 333, unconstitutional, and sever them from the Workers' Compensation Code. ¶6 The Chiropractors' appendix includes two affidavits from Chiropractors, showing that they have provided evidence in the past in the Workers' Compensation Court. One of them has been an independent medical examiner in the past, and one claims that the new statutes will adversely affect his chiropractic practice. There is also an affidavit from an attorney, attaching reports from the Workers' Compensation Court, showing that 20.7% of claims in 2010 were back related. Also attached is a list of independent medical examiners with Chiropractors on that list. If the statute is found to be constitutional, nineteen Qualified Independent Medical Examiners will be erased from the books. ¶7 In the present matter there is no hypothetical controversy in the instant suit. Daniel Post, D.C., is an "independent medical examiner" ("IME") certified by the Workers' Compensation Court. He can no longer act as an independent medical examiner under the new statute. Therefore, there is an actual, existing justiciable controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute. Gordon v. Followell, 1964 OK 74, ¶ 0, 391 P.2d 242. The appendix provided by the Chiropractors shows that eighteen (18) other Chiropractors are Qualified Independent Medical Examiners for the term beginning July 1, 2011. ¶8 However, for this matter to go forward, 85 O.S. §§ 329 and 333 have to be shown to either be impermissible special laws or violate the separation of powers.5 In Thomas v. Henry, 2011 OK 53, ¶ 12, __P.3d__, this Court stated that a general statute is one that uniformly regulates or involves all persons or things in a given class, and is general in its application to all of the given class, as opposed to applying to less than an entire class of similarly-situated persons. ¶9 In Grant v. Goodyear Tire and Rubber Co., 2000 OK 41, ¶10, 5 P.3d 594, 598, this Court held: A special law is one that treats those within the same class differently. For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable bias for discrimination. Hamilton v. Oklahoma City, 1974 OK 109, ¶6, 527 P.2d 14, 15-16. If there is neither a distinctive characteristic upon which a different treatment may reasonably be founded nor one which furnishes a practical and real basis for discrimination between the two groups within the class, the distinction becomes arbitrary and without relation to the subject matter. Roberts v. Ledgerwood, 134 Okla. 152, 272 P. 448, 452 (1928). Such a special law cannot withstand constitutional scrutiny. ¶10 Furthermore in Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶17, 130 P.3d 213, 221, this Court held: The probative value of an IME's opinion on the extent of impairment or disability is evidence to be considered on a footing equal to all other proof in the case. There is no basis in compensation law for authority to drain the judicial process of its very essence by encroaching on the trial tribunal's freedom to rate compensable harm at any point that stands within the range of adduced competent evidence . Legislation that either directly or obliquely predetermines an adjudicative fact impermissibly invades the judiciary's exclusive constitutional prerogative of fact-finding. (Emphasis added.) In Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶20-22, 163 P.3d 557, 564-565, this Court held that a workers' compensation statute which attempts to predetermine the range of adjudicated facts, and impermissibly invades the judiciary's exclusive constitutional prerogative of fact-finding, violated separation of powers: These restrictions on the workers' compensation court give determinative effect to the opinions of the court-appointed independent medical examiner and the treating physician even when the treating physician's opinion is not supported by objective medical evidence. These restrictions attempt to predetermine the range of the adjudicative facts and impermissibly invade the judiciary's exclusive constitutional prerogative of fact-finding. (Citations omitted) Id at ¶22. ¶11 In the present matter, 85 O.S. Supp. 2011 § 326(D) provides: The term "physician" as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist. The Court may accept testimony from a psychologist if the testimony is requested by the Court. 85 O.S. Supp. 2011 § 329(A) provides: The Workers' Compensation Court shall create, maintain and review a list of licensed physicians who shall serve as independent medical examiners from a list of licensed physicians who have completed such course study as the Administrator of the Workers' Compensation Court may require and who have been recommended as independent medical examiners by the Physician Advisory Committee. The Court shall, to the best of its ability, include the most experienced and competent physicians in the specific fields of expertise utilized most often in the treatment of injured employees. The period of qualification shall be two years. Physicians may be qualified for successive two-year periods. Physicians serving as Court qualified independent medical examiners on the effective date of this act shall serve the remainder of their respective two-year qualification periods and may reapply for successive qualification periods. The Court may remove an independent medical examiner from the list for cause. For purposes of this section, a physician shall be either a licensed medical doctor or a licensed doctor of osteopathy and shall include a person licensed in another state who would be qualified to be a licensed medical doctor or a licensed doctor of osteopathy under the laws of this state. How can Chiropractors, as well as Dentists, Podiatrists, and Optometrists, having been removed as Qualified Independent Medical Examiners, serve out the remainder of their terms without going against the statutory language? 85 O.S. Supp. 2011 § 333(B) provides: Permanent partial impairment shall not be allowed to a part of the body for which no medical treatment has been received. A determination of permanent impairment or disability made by the Court which is not supported by objective medical findings provided by a treating physician who is a medical doctor or doctor of osteopathy or a qualified independent medical examiner shall be considered an abuse of discretion. 85 O.S. Supp. 2011 § 308 (39) states: "Qualified independent medical examiner" means a licensed medical doctor or doctor of Osteopathy qualified to serve as an independent medical examiner pursuant to this act; ¶12 We find the legislature, by the exclusion of not only chiropractors, but also podiatrists, dentists, and optometrists, have created a suspect special class. We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes. Therefore, the distinction becomes arbitrary and without relation to the subject matter. We therefore find that the portions of the statutes that exclude all physicians other than medical doctors or doctors of osteopathy, including the definition of "qualified independent medical examiner" in § 308(39), to be unconstitutional. Because we determine that the language, "(f)or purposes of this section, a physician shall be either a licensed medical doctor or licensed doctor of osteopathy and shall include a person licensed in another state who would be qualified to be a licensed medical doctor or licensed doctor of osteopathy under the laws of this state,"6 and "(a) determination of permanent impairment or disability made by the Court which is not supported by objective medical findings provided by a treating physician who is a medical doctor or doctor of osteopathy or a qualified independent medical examiner shall be considered an abuse of discretion,"7 creates a special law, we must consider whether this offending language can be severed and the remainder of the statute can be preserved. A cardinal principle of statutory construction is to save and not destroy. In the Matter of the Application of the Oklahoma Dept. of Transportation, 2002 OK 74, ¶27, 64 P.3d 546, 552. In this regard, we must determine whether the purpose of the statute would be significantly altered by severing the offending language, whether the Legislature would have enacted the remainder of the statute without the offending language, and whether the non-offending language is capable of standing alone. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶23, 163 P.3d 557, 565. The removal of the language merely upholds the status quo. The 2011 workers' compensation reform act contained 88 sections and 149 pages seeking comprehensive reform of existing workers' compensation jurisprudence. In view of the scope and breadth of the statutory changes in the 2011 workers' compensation reform act, it is our opinion that the purposes of the act would not be significantly altered by severing the offending language and that the Legislature would have enacted the statute without the offending language. The non-offending language can stand alone. Title 75 O.S. 2001, § 11a provides that " . . . the provisions of every act or application of the act shall be severable. If any provision or application of the act is found to be unconstitutional and void, the remaining provisions or applications of the act shall remain valid . . ." ¶13 In the present matter the Legislature has attempted to change the standard of review in the Workers' Compensation Court from preponderance of the evidence to the standard of clear and convincing evidence. Therefore, 85 O.S. Supp. 2011 § 329(J) the last sentence of which provides in pertinent part, "(t)he opinion of the independent medical examiner shall be followed unless there is a clear and convincing evidence to the contrary," must be severed. Additionally, 85 O.S. Supp. 2011 § 332(C) provides: There shall be a rebuttable presumption in favor of the treating physician's opinions on the issue of temporary disability and need for medical treatment. This presumption shall continue unless rebutted by clear and convincing evidence to the contrary of a qualified independent medical examiner. The second sentence of this statute must be severed as well for changing the standard of proof required. Finally, 85 O.S. Supp. 2011 § 326(G) provides: Effective March 1, 2012, the scope and duration of medical treatment shall be provided in accordance with the current edition of the "Official Disability Guidelines", [sic] as published by the Work Loss Data Institute. For medical treatment not addressed by the Official Disability Guidelines or addressed by not recommended in the ODG section in regard to injuries to the cervical, thoracic or lumbar spine, the Physician Advisory committee shall adopt the Oklahoma Treatment Guidelines as provided in Section 73 of this act. Medical treatment provided by or at the direction of the treating physician in accordance with the current edition of the Official Disability guidelines or Oklahoma Treatment Guidelines is presumed to be reasonable and necessary medical care. The employer or insurance carrier shall not be responsible for charges for medical treatment not provided in accordance with the current edition of the Official Disability Guidelines or Oklahoma Treatment Guidelines unless the medical treatment was provided in a medical emergency, the medical treatment was preauthorized by the employer or insurance carrier, or the medical treatment is approved by the Court upon a finding based on clear and convincing evidence provided by a qualified independent medical examiner that medical treatment provided according to either ODG or OTG is not in the best interest of the employee. The portion of the forgoing statute that states, "based on clear and convincing evidence" in the final sentence must also be stricken from the statute for attempting to change the standard of review in the Workers' Compensation Court from preponderance of the evidence to the standard of clear and convincing evidence. CONCLUSION ¶14 We hold that the definition of "qualified independent medical examiner" to the extent it is limited to only a licensed medical doctor or doctor of Osteopathy in 85 O.S. Supp. 2011 § 308(39) and the specifically mentioned portions of 85 O.S. Supp. 2011 §§ 329 and 333, are special laws in violation of the Oklahoma Constitution. We also hold that the specifically mentioned portions of 85 O.S. Supp. 2011§§ 326, 329 and 332 violate the separation of powers clause, Art. IV, § 1 of the Oklahoma Constitution. Therefore, such portions of the offending statutes that are explicitly referenced herein are hereby severed. APPLICATION TO ASSUME ORIGINAL JURISDICTION PREVIOUSLY GRANTED; OFFENDING STATUTES ARE FOUND TO BE UNCONSTITUTIONAL, AND APPLICABLE PORTIONS ARE HEREBY SEVERED. ¶15 CONCUR: COLBERT, V.C.J., WATT, EDMONDSON, REIF, COMBS, GURICH, JJ. ¶16 DISSENT: TAYLOR (JOINS WINCHESTER, J.), C.J., KAUGER (JOINS WINCHESTER, J.), WINCHESTER (BY SEPARATE WRITING), JJ. FOOTNOTES 1 85 O.S. Supp. 2011 § 326(D) provides: The term "physician" as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist. The Court may accept testimony from a psychologist if the testimony is requested by the Court. 2 Art. IV, § 1. Departments of government - Separation and distinction. The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. 3 Article V, § 46 of the Oklahoma Constitution provides in pertinent part: Local and special laws on certain subjects prohibited. 1. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; (Emphasis added.) 4 Article V, § 59. Uniform operation of general laws - Special laws when general law applicable. Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted. 5 See footnotes 3 and 4. 6 85 O.S. Supp. 2011 § 329(A). 7 85 O.S. Supp. 2011 § 333(B). WINCHESTER, J., with whom Taylor, C.J., and Kauger, J., join, dissenting: ¶1 I dissent to the majority opinion which assumes original jurisdiction to declare portions of the newly enacted Workers' Compensation Code, effective August 26, 2011, unconstitutional. I do not agree that the statutes in question constitute impermissible special laws nor do they violate the separation of powers clause, Art. IV, § 1 of the Oklahoma Constitution.1 ¶2 The majority finds that 85 O.S.2011, §§ 329 and 333, which exclude chiropractors from the list of qualified independent medical examiners, are special laws in violation the Oklahoma Constitution. The majority summarily claims that the exclusion of the Chiropractors creates a suspect, special class. I disagree. ¶3 Special laws, prohibited by Art. 5, §§ 46 and 59 of the Oklahoma Constitution, are those which do not have uniform operation and which apply to less than a whole class of persons, entities or things standing upon the same footing or in substantially the same situation or circumstances. City of Bethany v. Public Employees Relations Bd. of State of Okl., 904 P.2d 604, ¶36, 1995 OK 1999. The only issue to be resolved in a special laws attack is whether the statute in question targets for different treatment less than an entire class of similarly situated persons or things. Glasco v. State ex rel. Okla. Dept. of Corrections., 2008 OK 65, ¶ 18, 188 P.3d 177, 185. ¶4 The requisite class here includes the parties to the workers' compensation system, that is, the claimant employees and their employers. They are the parties entitled to submit evidence in a workers' compensation case. Despite the Chiropractors' assertions to the contrary, the implicated class is not the physicians who treat the claimants. The workers' compensation system exists for the benefit of claimants and their employers, not for the benefit of the treating physicians. The statutes in question articulate the rights of claimants and employers regarding the parties' submission of medical evidence at trial.2 Under the 2011 workers' compensation system, all claimants and their employers are treated alike and, as such, the statutes do not violate the special laws restraints in the Oklahoma Constitution. ¶5 Even if the Chiropractors could be considered part of a "class" for purposes of this analysis, the laws would not be deemed unconstitutional as chiropractors are not on the same footing as licensed medical doctors (M.D.'s) or doctors of osteopathy (D.O.'s). Chiropractors do not have the same medical training or education as M.D.'s or D.O.'s and their scope of work is more limited. Moreover, the practice of medicine by M.D.'s and D.O.'s includes a wide variety of specialties and covers a much broader range of treatment. M.D's and D.O.'s are trained to treat and evaluate the entire human body while the scope of treatment by chiropractors is, admittedly, more limited. As such, the statutes in question validly distinguish the Chiropractors from M.D.'s and D.O.'s and are not impermissible, special laws. ¶6 Finally, the majority asserts that the statutes violate the separation of powers clause in Art. IV, § 1 of the Oklahoma Constitution. The separation of powers doctrine prohibits legislative intrusion upon the functions assigned to the judiciary by the Constitution. Yokum v. Greenbriar, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. Generally, it is not within the province of this Court to judicially sanction the making of changes in workers' compensation statutes, or rights created thereunder, for this is within the prerogative of the legislature in the exercise of its police power. Ingram v. Oneok, Inc., 1989 OK 82, 775 P.2d 810, 813; Cities Service Gas Co. v. Witt, 1972 OK 100, 500 P.2d 288. Oklahoma's workers' compensation system is a creature of statute enacted by the Legislature which abrogates the common law, creates statutorily exclusive rights in the field it operates, along with remedies and procedures, and is hence, sui generis. See 85 O.S.2011 §301 et seq; Ingram v. Oneok, Inc., 1989 OK 82, 775 P.2d 810, 813. ¶7 Neither 85 O.S.2011, § 329 nor § 333 invade the judiciary's independence and factfinding powers as neither statute alters the weight to be accorded evidence presented to the workers' compensation court judge. The Workers' Compensation Court must still weigh all evidence and determine which evidence is clear and convincing. ¶8 Additionally, the present statutes are distinguishable from the statute at issue in Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557, cited by the majority. In Conaghan, this Court held that a workers' compensation statute which attempts to predetermine the range of adjudicated facts, and impermissibly invades the judiciary's exclusive constitutional prerogative of factfinding, violated the separation of powers. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶ 20, 163 P.3d 557, 564. This Court also held, however, that a workers' compensation statute which created a rebuttable presumption in favor of a treating physician's opinion did not violate the separation of powers. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶ 19, 163 P.3d 557, 564. ¶9 In the present case, 85 O.S.2011, § 329(J), which provides that the opinion of an independent medical examiner shall be followed unless there is clear and convincing evidence to the contrary, is similar to the rebuttable presumption approved by this Court in Conaghan. The new requirement does not alter the burden of proof any more than the rebuttable presumption in Conaghan. The determination of whether a claimant has properly met his burden of proof is still the task of the trial judge. ¶10 The statutes in question do not constitute impermissible, special laws, nor do they violate the separation of powers doctrine. Accordingly, I dissent. FOOTNOTES 1 I would decline to assume original jurisdiction in this case. When this Court has concurrent jurisdiction with the district courts, the Supreme Court will assume jurisdiction only in rare cases where there is a public interest controversy and an urgent or pressing need for determination of the matter. Keating v. Johnson, 1996 OK 61, & 9, 918 P.2d 51. The Chiropractors failed to plead facts that would indicate a concern for the broader public welfare. Instead, the Chiropractors point to their own hypothetical diminution in revenue based on their inability to be paid for the production of independent medical examiner reports it presents to the workers= compensation court. Moreover, there is no urgent need to determine this matter at the Supreme Court level. There is no reason this matter could not be timely and adequately resolved in the trial court. 2 Employers as well as employees rely upon the workers' compensation system for protection for on-the-job injuries. The Legislature has the sole discretion to change the laws to define qualified independent medical examiners as it sees fit, within the realm of constitutionality. There is no mention in the Act of a right for chiropractors to be qualified independent medical examiners nor do they have a right to present any evidence at workers= compensation hearings. The Legislature is free to exclude chiropractors from independent medical examiner status if it wishes to do so. Nothing in the new Act, however, prohibits the chiropractors from providing treatment to claimants.

890ac7c1-63a8-455a-aa3a-8c6612892ce3

Vargas v. Occupants of 3908 SW 24th St Oklahoma City

oklahoma

Oklahoma Supreme Court

VALDEZ v. OCCUPANTS of 3908 SW 24th Street2011 OK 99Case Number: 108599Decided: 11/22/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. WSBALDO VALDEZ and LINDA VARGAS, Plaintiffs/Counter-Defendants/Appellants, v. OCCUPANTS of 3908 SW 24th Street, Oklahoma City, Oklahoma and OKLAHOMA COUNTY TREASURER, Defendants/Cross-Defendants, and MAE OUELLETTE, Defendant/Counter-Plaintiff/Cross-Plaintiff/Third-Party Plaintiff/Counter-Defendant/Appellee, v. HECTOR VARGAS, Third-Party Defendant/Counter-Plaintiff. ON CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION III ¶0 The Appellants, Wsbaldo Valdez and Linda Vargas, owned property in joint tenancy and neglected to pay the 2005 property taxes. In 2006, Appellee, Mae Ouellette, purchased the property at a tax sale and later applied for a tax deed. She served notice on Vargas but not on Valdez. On November 10, 2008, Ouellette received a tax deed. Valdez and Vargas filed a petition to quiet title, for ejectment, and damages. They then filed a motion for partial summary judgment asserting the tax deed was void for failure to serve Valdez, and Valdez could redeem the entire property. In Ouellette's counter-motion for summary judgment and response to Appellee's motion for partial summary judgment, her two main assertions are: 1) Valdez and Vargas were either an unincorporated association or a partnership and service on Vargas was good service on Valdez; and 2) the service on Vargas was at least valid and the tax deed was effective as to her interest, thereby severing the joint tenancy. Ouellette argues she and Valdez are now tenants in common. The trial court held that service on Valdez was ineffective but agreed with Ouellette that Valdez could not redeem the entire property, and Valdez and Ouellette are tenants in common. The Oklahoma Court of Civil Appeals affirmed. We hold that service of a notice for application of tax deed is mandatory and must be made on all parties required by statute. Failure to make such service will render any issued tax deed void in its entirety. Valdez has the right to redeem the entire property. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED. Jennifer S. Jones and James P. Kelley, KELLY & JONES, Oklahoma City, Oklahoma, for Plaintiffs/Counter-Defendants/Appellants Jeffery S. Ludlam and Trevor S. Pemberton, MULINIX, OGDEN, HALL, ANDREWS & LUDLAM, Oklahoma City, Oklahoma, for Defendant/Counter-Plaintiff/Cross-Plaintiff/Third-Party Plaintiff/Counter-Defendant/Appellee COMBS, J. ¶1 This cause concerns a dispute over title to property owned in joint tenancy by the Appellants, Wsbaldo Valdez and Linda Vargas. The Appellee, Mae Ouellette, asserts an interest in the property by virtue of a tax deed issued to her. The issues to be resolved are: 1) is a tax deed partially valid if some but not all owners are served the notice of application for tax deed; and 2) what right of redemption does an owner have who is not properly served. ¶2 We hold that service of a notice for application of tax deed is mandatory and must be made on all parties required by statute. Failure to make such service will render any issued tax deed void in its entirety. Valdez, as an owner who was not properly served, has the right to redeem the entire property. SUMMARY OF THE LITIGATION ¶3 In 1990, Appellants, Wsbaldo Valdez ("Valdez") and his daughter Linda Vargas ("Vargas") purchased the property at issue ("Property") in Oklahoma County as joint tenants. The property was first used as a residence by Vargas and then it was used as rental property. There were several rent-paying tenants, including her son, Hector Vargas. Vargas managed the property per oral agreement with Valdez. ¶4 The 2005 ad valorem taxes were not paid and the Oklahoma County Treasurer sold the property at a tax sale on October 2, 2006. Appellee, Mae Ouellette ("Ouellette"), purchased the property at the tax sale and received a tax certificate. On August 18, 2008, Ouellette filed a notice of application for tax deed ("Notice"). Ouellette sent one Notice to the occupant of the property which was signed for by Hector Vargas. She mailed the other Notice to "Linda Vargas &/or Wsvaldo [sic] Valdez" at a post office box which was signed for by Linda Vargas. The post office box was under Vargas' control. Valdez did not have access to the post office box. No other notice was mailed, served or published. Upon receipt of the Notice, Vargas contacted the treasurer's office and was informed that the taxes were paid. She did not inform Valdez about the Notice because she thought the issue was resolved. ¶5 A county treasurer's certificate tax deed was issued to Ouellette on November 10, 2008. Valdez stated he first became aware of the sale when Ouellette claimed ownership of the property after the issuance of the tax deed. ¶6 A petition to quiet title, for ejectment, and damages was filed by Valdez on February 6, 2009. He asked the trial court to find the certificate tax deed was void for lack of service, and that title be quieted. He also requested immediate possession of the property and damages in the amount of the reasonable rental value of the property. On the same day, Valdez tendered to the Oklahoma County Court Clerk an amount sufficient to satisfy the payment of all taxes, interest and costs required by statute.1 Valdez later filed an amended petition which included Vargas as an additional party plaintiff. ¶7 On April 27, 2009, Valdez and Vargas filed a motion for partial summary judgment, and on July 20, 2009, Ouellette filed a response and counter-motion for summary judgment. She filed, on November 6, 2009, a combined response and supplement to her counter-motion for summary judgment. ¶8 Valdez and Vargas contend Ouellette failed to comply with the notice requirements of Title 68 O.S. § 3118 and Title 12 O.S.§ 2004 (C)(2)(b). Section 3118 provides that prior to a certificate holder receiving a tax deed they shall serve notice on the property owner that the owner has sixty days to redeem the property or a tax deed will be demanded.2 The notice is to be made by process server, by the sheriff, or by restricted certified mail with return receipt requested. They argue that the provisions of Title12 O.S. § 2004 (C)(2)(b) are applicable and it requires service by mail be made on each defendant in a separate envelope.3 Because only one notice was sent to the post office box and Vargas signed for that service, Valdez was not properly served. ¶9 Next, Valdez and Vargas declare that legal and equity owners of property have the absolute right to redeem all interest in the property from tax sale. In essence the argument is, because Valdez was not served properly, he can redeem the entire property after the tax deed was issued. ¶10 Ouellette argues that Valdez and Vargas are an unincorporated association and therefore service on Vargas was enough to effectuate service on Valdez. She cites to the provisions of Title 12 O.S. § 187 [sic (§ 182)] and 2004(c)(3) [sic (2004 (C)(1)(c)(3))] which provide for service on unincorporated associations and partnerships. ¶11 Vargas and Valdez argue they have never been an unincorporated association and they are not business partners. They assert each owns an undivided interest in the Property in his/her individual capacity and not under any appellation. The post office box is under Vargas' control and Valdez has no access to it. It is not under the name of an unincorporated association created by Valdez and Vargas. Further, title is not held under the name of an unincorporated association or partnership nor was service made to a member of an unincorporated association or partnership. They also argue that § 182 and § 2004(C)(1)(c)(3)are inapplicable because the sections pertain to an unincorporated association or partnership under a particular appellation or common name. ¶12 In Ouellette's reply she asserts Valdez and Vargas at least created a business partnership under Title 54 O.S. § 1-202.4 Further, she contends that even if they did not form some kind of a business, one notice was sufficient because the only address provided to the county treasurer was the post office box, the argument being that it was reasonably probable that Valdez would be apprised of the Notice. She argues the issue of whether or not Vargas and Valdez formed a business entity is a question of fact and therefore the trial court should deny plaintiff's motion for summary judgment. She also contends Vargas was not entitled to summary judgment because she was personally served the Notice. ¶13 Ouellette asserts in her combined response and counter-motion for summary judgment that the tax deed was valid as to Vargas and its effect was to sever the joint tenancy between Vargas and Valdez thus making them tenants in common. She relies on Title 60 O.S. § 74 which concerns joint tenancies. This section provides ". . . [n]othing herein contained shall prevent execution, levy or sale of interest of the judgment debtor in such estates and such sale shall constitute a severance." She also argues that the joint tenancy was severed by Vargas because she leased the Property, made all the decisions regarding the Property, and collected the rent on the Property. She cites to cases in other jurisdictions holding that a lease destroys one or more of the essential four unities of joint tenancy and results in a severance and termination of the joint estate.5 ¶14 She next contends that plaintiffs' theory that the entire Property can be redeemed because he was not properly served is contrary to an Oklahoma Court of Civil Appeals case, TIP Properties, L.L.C . v. Harrison, 2008 OK CIV APP 100, 197 P.3d 520.6 The Court of Civil Appeals ("COCA") in TIP found that a tax deed was void as to the wife because she was not served notice. The COCA remanded the case back to the trial court to determine whether or not the husband had been properly served notice. Under plaintiffs' theory the COCA should have invalidated the deed against both husband and wife once the determination was made that service upon her was invalid. She argues TIP would reject that theory. She also cites Shackelton v. Sherrard, 1963 OK 193, 385 P.2d 898, which found the act of a joint tenant in conveying her interest in property to a stranger operates to sever that interest from the tenancy. Shackleton, however, dealt with a joint tenant who executed a quit claim deed to a third-party grantee, and by doing so, this Court found that the joint tenancy was severed. ¶15 Valdez and Vargas assert the right of redemption and the validity of the tax deed are two distinct issues. The validity of a tax deed against one interest holder does not extinguish the right of redemption of another interest holder. Nor is there statutory or case law authority for the parceling of the various interest in the real property. Ouellette should not be permitted to insert herself as an interest holder by just serving one owner and, thereby, depriving Valdez of his right to redeem the entire property. That result would be absurd because she would receive an interest in the Property and also receive the delinquent tax amount, interest and costs. They also cite Shackelton v. Sherrad, supra, for the purpose of showing that parties can have a special agreement at variance with the legal presumption of the equality of joint tenants and that their rights and interests will be fixed in accordance with their own agreements.7 The understanding between Valdez and Vargas at the time of their purchase of the property was that they were co-owners as joint tenants with the right of survivorship, and that Vargas was to manage the property. The leasing of the property by Vargas was consistent with this arrangement. ¶16 Valdez and Vargas further argue that even if it is found that the joint tenancy was severed, Valdez had the right under § 3113 and § 3118 to redeem the entire property. They cite Patterson v. Wilson, 1950 OK 271, ¶8, 223 P.2d 770, 772, where this Court held that a co-tenant of mineral interest had only the right to redeem the entire property from a tax sale and not just his mineral interest, because the mineral interest was not separately taxed. At that point, the co-tenant could endeavor to collect from his co-tenants their proportionate share of the tax. Because the Property is a single lot with a single tax identification and tax amount, Valdez must redeem the Property by payment of the delinquent taxes, interests and costs. Then he can collect the taxes owed by Vargas. ¶17 On July 8, 2010, the trial court issued its Journal Entry of Judgment and certified the same as a final judgment pursuant to Title 12 O.S. § 994. The trial court found that Ouellette did not properly serve notice on Valdez and the certificate tax deed was void as to him. The certificate tax deed was, however, valid as to the interest of Vargas. Ouellette was awarded Judgment in rem against Vargas for possession of an undivided one-half (1/2) interest in and to the Property. The trial court also held Vargas has no right, title, ownership or interest in and to the Property. The court found that Valdez had tendered the necessary amount to redeem the interests of both Valdez and Vargas, but denied Valdez' request to fully redeem the Property for the interests of both Valdez and Vargas. The court held that Valdez is entitled to only redeem an undivided one-half (1/2) interest in the Property and now is a tenant in common with Ouellette who also holds an undivided one-half (1/2) interest in the Property. ¶18 On August 11, 2010, Appellants filed their petition in error with this Court. On November 4, 2010, the case was assigned to the Oklahoma Court of Civil Appeals. COCA affirmed the trial court. In its opinion filed June 16, 2011, the court found the material facts were not in dispute. The material facts are that Vargas and Valdez owned property in joint tenancy and used it as rental property. Ouellette served the Notice on Vargas but not on Valdez. The court cited Garcia v. Ted Parks, L.L.C., 2008 OK 90, ¶18, 195 P.3d 1269, 1274. This Court held in Garcia that the notice requirements concerning tax sales were mandatory even if the property owner has actual knowledge of the sale. If the certificate holder fails to comply with the notice statutes, then the court may set aside the tax deed. COCA agreed with the trial court in finding that Valdez was not properly notified and, therefore, the tax deed issued for his interest was void. ¶19 COCA determined the remaining issue was whether a joint tenant may redeem all of the property or only his quantity of interest in the property when a tax deed has been found void for lack of proper notice as to one joint tenant. The court looked at TIP Properties, L.L.C. v. Harrison, supra. It found the effect of TIP is that a tax deed may be void as to one joint tenant but not another, because a tax sale terminates the joint tenancy. The court noted this Court's opinion in Toma v. Toma, 2007 OK 52, ¶15, 163 P.3d 540, which held that a levy or execution destroys joint tenancy. Once the joint tenancy is terminated, the interest holders are tenants in common. American Nat. Bank & Trust Co. of Shawnee v. McGinnis, 1977 OK 47, 571 P.2d 1198. COCA held the trial court correctly found that Ouellette and Valdez were tenants in common and, upon termination of the joint tenancy, Valdez had no interest in the whole estate to redeem. Therefore, Valdez could only redeem a one-half (1/2) interest in the Property. ¶20 Appellants filed a petition for writ of certiorari which was granted by this Court on October 10, 2011. STANDARD OF REVIEW ¶21 An appellate court reviews a grant of summary judgment by a de novo standard. In Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053, we said: Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. [This Court], like the trial court, will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Further, all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. (Citations omitted.) VALDEZ WAS NOT PROPERLY SERVED NOTICE ¶22 Ouellette argues that Valdez and Vargas were either an unincorporated association or a partnership and therefore service on Vargas was also effective on Valdez. She cites to Title 12 O.S. § 187 sic [§ 182] and § 2004 (c)(3) sic [§ 2004 (C)(1)(c)(3)] which concern service of process on unincorporated associations and partnerships. However, these statutes require such unincorporated associations and partnerships to be under a particular appellation or common name. The record does not reflect Valdez and Vargas used any particular appellation or common name, nor was service attempted on any appellation or common name. She also asserts Valdez and Vargas are partners under the provisions of Title 50 O.S. § 1-202. This section provides that when two people form a business for profit they are partners regardless if they intended to form a partnership. This same section, however, also provides that a joint tenancy "does not by itself establish a partnership, even if the co-owners share profits made by the use of the property." Therefore, we find from the evidence presented in the record, and the statutes cited above, Valdez and Vargas did not form an unincorporated association or partnership and service upon Vargas was not proper service on Valdez. VALDEZ HAS THE RIGHT TO REDEEM THE ENTIRE PROPERTY ¶23 The issue to resolve is whether Valdez has a right to redeem the Property. Ouellette states, in her answer to the petition for writ of certiorari, the Notice to Vargas was valid and she failed to redeem her interest in the Property. Vargas' actions severed the joint tenancy, and Valdez could redeem only his interest in the property. She argues that COCA applied the TIP case correctly. ¶24 The trial court and COCA held the tax deed severed the joint tenancy. Ouellette could then step into Vargas' shoes and have a one-half (1/2) undivided interest in the Property with Valdez as tenants in common. We disagree. ¶25 This Court has long held that notice upon an owner is jurisdictional and failure to make the mandatory notice renders the tax deed absolutely void.8 The court may set aside a tax deed if the certificate holder fails to comply with the statutory notice requirements.9 This Court has also held that the property owner's actual knowledge of a tax deed proceeding does not relieve the person seeking the deed from complying with the notice statutes.10 ¶26 Title 68 O.S. § 3113 provides "[t]he owner of any real estate, or any person having a legal or equitable interest therein, may redeem the same at any time before the execution of a deed of conveyance . . . " This Court has held that "[u]ntil a resale tax deed, valid on its face, has been issued and delivered, the landowner has the right to redeem from the tax sale and tax resale."11 We find the tax deed issued to Ouellette is void for failure to serve notice on Valdez. Because the tax deed is void, Valdez and Vargas, as joint tenants, have the right to redeem the Property after the issuance of the tax deed. ¶27 Proper service on Vargas did not create a partially valid tax deed. The tax deed is void in its entirety by reason of the defective notice to a joint tenant, Valdez. This Court has previously held that "[w]hen a proceeding is void for one purpose, it is void for all purposes. A void tax deed is like a void judgment, which (to use the language of Justice Ramsey, formerly of this court) is but 'a dead limb upon the judicial tree, which may be lopped off at any time.'"12 Ouellette's assertion that proper service on Vargas made the tax deed valid as to Vargas' interest is incorrect. The tax deed is for the entire property upon which delinquent taxes were owed. Her reliance on Title 60 O.S. § 74 which applies to severance of a joint tenancy because of execution, levy or sale of interest of a judgment debtor, is also incorrect. The referenced portion of that section of law applies to a judgment debtor and there is no judgment upon which an execution, levy or sale took place in the present case. Because service was not made on Valdez, the tax deed itself is void, therefore there is nothing legally valid to sever the joint tenancy.13 ¶28 Ouellette cannot benefit from failing to serve proper notice on Valdez. Valdez, as an owner, has the right to redeem the entire property upon which taxes were delinquent.14 The purpose of the law is to assess, levy and collect taxes upon land where the appropriate taxes have not been paid. It is not for the purpose of taking one person's land and giving it to another for a paltry or inconsequential sum.15 Only if notice has been properly served on all required parties, does the tax certificate holder have the right to demand a tax deed. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED. ¶29 ALL JUSTICES CONCUR FOOTNOTES 1 Title 68 O.S.§ 3113. 2 Title 68 O.S. § 3118 was repealed on April 24, 2008; four months prior to Ouellette filing her Notice of Application for Tax Deed. SB 1770 (2008) repealed provisions relating to the two-year certificate tax deed process. However, Section 7 of SB 1770 created § 3105.1, which provides "[a]ny person holding a tax lien pursuant to Sections 3101 through 3125 of Title 68 of the Oklahoma Statutes prior to the effective date of this act [April 24, 2008] shall be authorized to continue the tax lien or tax deed process under the laws in effect at the time such tax lien or tax deed was obtained." Repealed § 3111, gives a lien to the purchaser at a tax sale. Ouellette purchased the property at the tax sale on October 2, 2006, and received a tax certificate. Therefore, she had a lien prior to SB 1770's repeal of § 3118 and that section as well as other relevant sections are in effect to resolve the issues in the present case. 3 Title 12 O.S. § 2004(C)(2)(b) provides for service by mail of a summons and petition. Section 3118 requires notice be "sent as provided by law." Valdez and Vargas argue that Title12 O.S. § 2004(C)(2)(b) provides the guideline in determining how to serve the Notice of Application for Tax Deed. 4 Title 54 O.S. § 1-202 (a) provides "[e]xcept as otherwise provided in subsection (b) of this section, the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership." However, subsection (c)(1) states "[j]oint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property." 5 Swartbaugh v. Sampson, 11 Cal. App. 2d 451, 54 P.2d 73; and Alexander v. Boyer, 253 Md. 511, 253 A.2d 359. She also cites to American Nat'l Bank & Trust Co. v. McGinnis, 1977 OK 47 ¶ 3, 571 P.2d 1198, 1199. American provides that a joint tenancy is created only when unities of time, title, interest, and possession are present. Unity of time requires interests of joint tenants to vest at the same time; unity of title requires parties to take their interests by the same instrument; unity of interest requires estates of same type and duration; and unity of possession requires joint tenants to have undivided interests in the whole, not undivided interests in the several parts. Alteration of any required unity will destroy the joint tenancy. 6 This case was not released for publication by the Oklahoma Supreme Court and therefore is not precedential. 7 Shackleton v. Sherrad, 1963 OK 193, ¶10, 385 P.3d 898, 900. 8 Garcia v. Ted Parks, L.L.C., 2008 OK 90, ¶ 18, 195 P.3d 1269, 1274; Bowen v. Thompson, 1926 OK 812, ¶ 1, 249 P. 1109, 1110. 9 Id. Garcia, citing Jones v. Buford, 1961 OK 20, 359 P.2d 232. 10 Id. 11 Petrovics v. Brown, 1951 OK 173, ¶4, 235 P.2d 708, 709. 12 Lind v. Stubblefield, 1929 OK 143, ¶16, 282 P. 365, 367 (quoting Pettis v. Johnston, 1920 OK 224, 190 P. 681). 13 Black's Law Dictionary 1604 (8th ed. 2004) defines "void" as being "[o]f no legal effect; null." 14 See Patterson v. Wilson, 1950 OK 271, ¶8, 223 P.2d 770, 772. 15 Foster v. Marshall, 1930 OK 73, ¶45, 284 P. 882, 888.

d89353fd-bef7-44f0-b216-8713442a2acb

McWilliams v. Comanche Cty. Bd of Comm'rs

oklahoma

Oklahoma Supreme Court

MCWILLIAMS v. BOARD OF COUNTY COMMISSIONERS OF COUNTY OF COMANCHE2011 OK 103Case Number: 107932Decided: 12/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Paul McWilliams, Appellant, v. Board of County Commissioners of the County of Comanche, a Political Subdivision of the State of Oklahoma, Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS Division III ¶0 Plaintiff commenced this Governmental Tort Claims action against a political subdivision for injuries received in a motorcycle accident occasioned by a defective condition in the county-line road. The District Court of Comanche County, Honorable Allen McCall, entered judgment for the county. The Court of Civil Appeals affirmed and the plaintiff timely sought certiorari review by this Court. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. David L. Thomas, Thomas & Terrell, PLLC, Oklahoma City, and Jerry L. Breathwit, Oklahoma City, Oklahoma for Appellant. Michael R. Chaffin, Frailey, Chaffin, Cordell, Perryman, Sterkel &, McCalla, LLP, Chickasha, Oklahoma for Appellee. COLBERT, V.C.J. ¶1 The issue presented on certiorari review is whether a governmental subdivision is equitably estopped from denying liability where it, having previously entered into an undisclosed oral contractual agreement regarding the maintenance of the county-line road, failed to advise the plaintiff that another county, not it, bore responsibility for the road maintenance at some point prior to the expiration of the limitations period. Based on the evidence presented, this Court answers in the affirmative. FACTS AND PROCEDURAL HISTORY ¶2 On July 26, 2003, McWilliams was injured when his motorcycle hit an area where the road had buckled causing his motorcycle to flip. The road in question adjoins Caddo and Comanche Counties. But, the precise location of the accident is in Caddo County. ¶3 McWilliams timely submitted notice of his tort claim to Comanche County via e-mail on November 4, 2003. Comanche County Commissioner, Gale Turner (Commissioner Turner), responded via e-mail on November 10, 2003, and requested "a more descriptive location of the accident." McWilliams complied. ¶4 Unbeknownst to McWilliams, Comanche and Caddo Counties entered into an oral contractual agreement regarding the maintenance of the county-line road more than twenty years ago. Pursuant to that agreement, Caddo County was responsible for maintaining the section of roadway where McWilliams' accident occurred.1 However, the contractual agreement was oral, and no document is on file in the county records delineating the two counties' responsibilities. ¶5 Immediately after receiving notice of McWilliams' accident, Comanche County repaired the road. Later, Caddo County completely overlaid the road. No one, however, advised McWilliams that an oral roadway maintenance agreement existed between the two counties. ¶6 On January 19, 2004, prior to retaining counsel, McWilliams contacted Commissioner Turner again, and made an offer to settle his claim for $25,000. However, neither Commissioner Turner nor the insurance carrier responded and the tort claim was accordingly deemed denied pursuant to title 51, section 157(A) of the Oklahoma Statutes.2 This action ensued. ¶7 McWilliams filed suit against Comanche County in August 2004 alleging negligence in failing to properly maintain the county-line road, south of Apache and east of Highway 62/281, in a safe condition. On August 18, 2004, Comanche County answered, alleging that it "has insufficient information to either admit or deny [McWilliams'] contentions and therefore denies same, both generally and specifically." ¶8 On July 18, 2005, the parties were ordered to conduct mediation; but the mediation was unsuccessful.3 On November 9, 2005-over one year after the commencement of this action and two years after the accident-Comanche County filed a combined Motion to Dismiss/Motion for Summary Judgment. For the first time, Comanche County specifically denied liability based on the Comanche-Caddo roadway maintenance agreement. And, in support thereof, attached an affidavit from Caddo County Commissioner, Carlos Squires, which claimed responsibility for the area in question. Summary judgment was granted to Comanche County in 2006. That judgment, however, was reversed by the Court of Civil Appeals by an unpublished opinion in 2007. ¶9 On remand, during a one-day non-jury trial, the trial court, as fact finder, heard testimony from several witnesses. McWilliams testified that on the day of the accident, he was going to visit family members. He stated that while he was familiar with the county road and its condition, he could not determine the height of area where the road had buckled. As McWilliams approached the defective area, he noticed a dog lying on the right side of the roadway. As a precaution, McWilliams navigated his motorcycle to the road's center, and hit the defective surface which caused his motorcycle to flip end-over-end. He suffered severe personal injuries and property damage. ¶10 McWilliams' father, Paul McWilliams, Jr. (Paul) testified that following the accident, he notified Commissioner Turner of the incident and the dangerous condition of the road. Paul testified the road was repaired the following day, but he was unsure who repaired the road. He further stated the road remained in good repair following his son's accident. ¶11 Commissioner Turner testified that Comanche County had never maintained or made any repairs to the road in question prior to McWilliams' accident. And, he confirmed that Comanche County's maintenance supervisor, Brian Bridges (Bridges), repaired the road after receiving notice of McWilliams' accident. Commissioner Turner further indicated Comanche County made the repairs as a courtesy to Caddo County, because the Counties traditionally made courtesy repairs for other counties if the repairs are necessary for the safety of the public. ¶12 Bridges testified he received a call from Comanche County's secretary about McWilliams' accident and inspected the area the following day. Bridges confirmed Caddo County was responsible for maintaining the road. ¶13 Caddo County Commissioner Carlos Squires verified that Caddo County was familiar with and responsible for maintaining the road where McWilliams' accident occurred. Commissioner Squires testified that sometime after McWilliams' accident, Caddo County completely overlaid the road. Commissioner Squires confirmed that the agreement with Comanche County was verbal. ¶14 After considering the evidence presented, the trial court held that, although the accident was caused by the road's condition, no evidence was presented to support McWilliams' contention that Comanche County was responsible. In so ruling, the trial court determined that the facts presented were insufficient to support estoppel, and specifically stated: I don't think the facts of this case support estoppel. I don't - I don't approve of how this all occurred with Mr. McWilliams. I think he probably should have been given some more information, but, you know, the other side of that is that the commissioner or some employees of his, is it their duty to advise somebody about the proper place for a lawsuit; probably not. ¶15 The trial court concluded McWilliams filed his lawsuit against the wrong county and refused to hold Comanche County liable for McWilliams' injuries based upon the repairs it made to the road after the accident. The court determined the evidence was insufficient to establish, by a preponderance of the evidence, that Comanche County owed a duty to McWilliams, nor was any duty breached by it. The Court of Civil Appeals affirmed. This appeal followed. STANDARD OF REVIEW ¶16 When a trial court's judgment from a bench trial depends on equitable principles, this Court may reexamine the record and weigh the evidence. K & H Well Serv. v. TCINA, INC., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223. This Court will disturb the trial court's judgment when its ruling is clearly against the weight of the evidence or contrary to established principles of equity. Wetsel v. Johnson, 1970 OK 69, ¶ 7, 468 P.2d 479, 481; Merritt v. Merritt, 2003 OK 68, ¶ 7, 73 P.3d 878, 882. ANALYSIS ¶17 As a preliminary matter, the trial court erred in binding McWilliams to the Comanche-Caddo County roadway oral maintenance agreement. The Legislature placed the onus of maintaining and constructing "[a]ll county highways on county lines in this state . . ." on the adjoining counties. Okla. Stat. tit. 69, § 621 (2001). Section 622 permits the counties, by agreement, to predetermine which sections of the county-line road they will maintain and sets forth the manner of enforcement. Okla. Stat. tit. 69, § 622 (2001). ¶18 Comanche and Caddo Counties entered into an oral agreement more than twenty years ago. The parties concede that no written instrument is on file either memorializing their agreement or making the terms of that agreement readily ascertainable to the public. There is nothing in sections 621 and 622 that prohibits an oral contractual agreement between the contracting counties. Equally, no basis exists to bind unsuspecting non-contracting parties to the counties' undiscoverable agreement. See Okla. Stat. tit. 69, §§ 621-622 (2001); See generally, Morgan v. Galilean Health Enter., Inc., 1998 OK 130, ¶ 13 & n.26, 977 P.2d 357, 364, (citing Green Bay Packaging v. Preferred Packaging, 1996 OK 121, ¶ 48, 932 P.2d 1091, 1099 (where the court stated that "[a] contingent-fee arrangement is a matter between the client and the client's attorney. It is not binding on the court")); Burke v. Bennett Drilling Co., 1962 OK 102, 371 P.2d 477. ¶19 Based on the facts presented, Comanche County is estopped to deny liability to McWilliams. "Equitable estoppel is generally understood to prevent one party from taking a position which is inconsistent with an earlier action that places the other party at a disadvantage." Strong v. State ex rel. Okla. Police Pension & Ret. Bd., 2005 OK 45, ¶ 9, 115 P.3d 889, 893. The essential elements necessary to establish equitable estoppel are: first, there must be a false representation or concealment of facts; second, it must have been made with actual or constructive knowledge of the real facts; third, the party to whom it was made must have been without knowledge, or the means of discovering the real facts; fourth, it must have been made with the intention that it should be acted upon; and fifth, the party to whom it was made relied on, or acted upon it to his or her detriment. Sullivan v. Buckhorn Ranch P'ship, 2005 OK 41, ¶ 31, 119 P.3d 192, 202. A party's intent to misrepresent or conceal facts may be inferred However, a "stronger, more compelling policy or interest must be advanced before estoppel may be invoked against either the state or a public agency." Strong, 2005 OK 45, ¶ 9, 115 P.3d at 893. ¶20 Here, Comanche County's actions served to conceal the relevant fact that it had an oral contractual agreement with Caddo County to maintain the section of road where McWilliams' accident occurred. Comanche County accepted McWiliams' notice of tort claim, made inquiries as to the exact location, and immediately repaired the road. McWilliams' damages claim was deemed denied, not by Comanche County's insistence that it was not the responsible party, but by operation of law.4 Then, at trial, Comanche and Caddo County Commissioners testified that each Commissioner had actual knowledge of the oral agreement and that Caddo County was the responsible party. Yet, Comanche County withheld this vital fact from McWilliams for over two years. The secret nature of the agreement and Comanche County's dilatory conduct robbed McWilliams of any means to discover Caddo County's responsibility to maintain that section of the county-line road where his accident occurred. ¶21 Even after Comanche County's initial request to McWilliams regarding the accident location, its subsequent repairs, and notification to Caddo County concerning the road's dangerous conditions, Comanche County took no steps to advise McWilliams of the Comanche-Caddo County oral agreement. Instead, Comanche County willfully lulled McWilliams along until ordered to mediate McWilliams' claim - all to McWilliams' detriment. A governmental entity cannot escape liability by concealing facts and implying to a plaintiff that it, not another, is responsible for that plaintiff's injuries. In doing so, the lulling governmental entity should be estopped to deny liability. And, under these circumstances, both counties may be liable for an injury caused by the negligent maintenance of the county-line road. ¶22 While this Court recognizes that a private defendant is under no obligation to voluntarily reveal other potential defendants in the preliminary stages of an action, a governmental subdivision may be obligated to do so under certain circumstances where, as here, equity demands it. In this case, Comanche County should have revealed the possibility that Caddo, not it, bore responsibility for the road maintenance at some point prior to the expiration of the statutorily prescribed time bar. Such inaction and misrepresentations that previously were to McWilliams' detriment, now should be to Comanche County's detriment. ¶23 To make matters more egregious, the trial court failed to take notice of the record before it and substitute Caddo County as the proper party-defendant under title 12, section 2015(C) of the Oklahoma Statutes.5 In cases such as these, where a plaintiff is mistaken as to the identity of a defendant, the inclusion of the correct party-defendant is proper. See Pan v. Bane, 2006 OK 57, ¶ 6, 141 P.3d 555, 558; See also Okla. Stat. tit. 12, § 2015(C) (2001). The mistake must not be one of strategy or negligence, but one "where a plaintiff intended to sue the proper party but misidentified or misnamed him or her in the original pleading and the new party knew within time that he or she would have been sued but for the plaintiff's mistake." Pan v. Bane, 2006 OK 57, ¶ 25, 141 P.3d 555, 563; Krupski v. Costa Crociere, 130 S. Ct. 2485 (2010). Such a concept is not foreign to this jurisdiction's cognizance, especially where a governmental agency is concerned. See Calvert v. Tulsa Pub. Schs, Indep. Sch. District No. 1, 1996 OK 106, ¶ 10, 932 P.2d 1087, 1090 (where the court held that "[t]he Governmental Tort Claims Act specifically expresses the intent that Oklahoma procedural rules shall apply unless in conflict with the Act")(superseded by statute on other grounds).6 ¶24 The cornerstone of the Governmental Tort Claims Act (GTCA) is notice. See Okla. Stat. tit. 51, § 151-200 (2001). The GTCA precludes any tort action against a political subdivision unless the plaintiff has provided notice and given the political subdivision the opportunity to accept or deny the claim. See Okla. Stat. tit. 51, § 157 (2001). In enacting the GTCA, it is clear that the Legislature intended not only to make the political subdivisions aware of an impending claim, but also provide the political subdivision with an opportunity to promptly investigate, assess any fiscal liability, and explore settlement options prior to a plaintiff commencing a lawsuit. Hathaway v. State ex rel. Med. Research & Technical Auth., 2002 OK 53, 49 P.3d 740. Rather than rely on a hyper-technical application of the Act, this Court will consider the purpose behind the GTCA and apply a more reasoned approach sounding in equity. It is without question that section 2015(C) encourages liberal substitution of parties to relate back to the original filing date. And, the application thereof does not violate the GTCA. ¶25 In applying section 2015(C) to the facts of this case, it should be noted that the addition of Caddo County as a party-defendant clearly arose out of the same occurrence established in the original pleading, specifically, McWilliams' motorcycle accident caused by the county road's defective area. Next, the addition of Caddo County in no way would prejudice its defense. Caddo County, upon receiving notice of the impeding action from Comanche County, investigated and prepared an affidavit which certified its familiarity with the accident location; claimed responsibility for that area; and later testified that it has historically had "trouble" with that "particular spot." The limitations defense is not intended to protect defendants from pleading mistakes occasioned by the plaintiff in an action that was otherwise timely. Rather, the purpose of the limitations period is to extinguish antiquated claims. Hawk Wing v. Lorton, 2011 OK 42, 261 P.3d 1122. ¶26 McWilliams timely commenced his action against Comanche County, whom he believed was the proper party-defendant. Comanche County and Caddo County share an identity of interests. "Identity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." 6A C. Wright, A. Miller, M. Kane, & R. Marcus, Federal Practice and Procedure § 1499 (3d ed. 1990).7 Here, the counties' statutory duty to maintain the county road, mutual agreement in its execution, and resulting conduct are identical threads of interests that both counties share. In all, their identity of interest is sufficient to warrant the inclusion of Caddo County and relate back to the original filing date. No prejudice or loss of opportunity can be occasioned by Caddo County under these circumstances.8 Yet, the trial court failed to hold either county responsible based on an unfounded, illogical, and antiquated technicality. It is patently clear that by Caddo County's own conduct of overlaying the road after Comanche County's initial repairs, that Caddo County knew or had reason to know, but for McWilliams mistakenly naming Comanche County, the action would have been commenced against it. CONCLUSION ¶27 Today, we recognize the application of the relation back doctrine found in section 2015(C) to the GTCA. See Pan v. Bane, 2006 OK 57, 141 P.3d 555. The evidentiary record substantiates that the undisclosed agreement between Comanche County and Caddo County coupled with Comanche County's dilatory conduct, prevented McWilliams of any means to discover Comanche County's true role in the litigation. As a matter of public policy, Comanche County is now estopped to deny liability of McWilliams' claim. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. CONCUR: Colbert, V.C.J.; Kauger, Watt, Winchester, Edmondson, Reif, Combs, Gurich, JJ. CONCURS IN RESULT: Taylor, C.J. FOOTNOTES 1 Title 69 of the Oklahoma Statutes, section 621 states: All county highways on county lines in this state shall be maintained and constructed by the counties adjoining. It shall be the duty of the board of county commissioners of each of the counties between which such roads are located to divide the roads on such county line into two parts or sections as nearly as practicable, giving due consideration to the difference of cost of constructing and maintaining each section, agreeing between themselves that each county shall undertake the work of constructing and maintaining one of the two sections. Title 69 of the Oklahoma Statutes, section 622 states: (a) It shall be the duty of each board of county commissioners to maintain the section of each county line road assigned to it by the aforesaid agreement. The expenditures on such roads shall be governed by the laws relating to expenditures by boards of county commissioners as expenditures on roads within the boundaries of such counties. (b) Provided, that when the board of county commissioners of any county is notified by the Board of an adjoining county that an agreement relating to division of county line roads as provided in the preceding section is desired, the boards shall within thirty (30) days of such notice proceed with the division in the manner agreed upon between the respective boards. 2 Section 157(A) states: A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the state or political subdivision. 3 McWilliams alleges that at Comanche County's urging, the trial court continued the pretrial conference and ordered the parties to mediate in good faith. He further alleges that before the parties attempted to mediate, Comanche County's insurance adjuster, who purportedly is the same insurance adjustor for Caddo County, terminated the proceedings based on the Comanche-Caddo County agreement. 4 See Okla. Stat. tit. 51, § 157(A) (2001). 5 An Amendment of a pleading relates back to the date of the original pleading when: 1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or 2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or 3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment: a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment to add an omitted counterclaim does not relate back to the date of the original answer. The delivery or mailing of process to the Attorney General of Oklahoma, or an agency or officer who would have been a proper defendant if named, satisfies the requirements of subparagraphs a and b of this paragraph with respect to the State of Oklahoma or any agency or officer thereof to be brought into the action as a defendant. Okla. Stat. tit. 12, § 2015(C) (2001). 6 "Section 2015 is identical to Rule 15 of the Federal Rules of Civil Procedure, and the federal court's construction is instructive." Roth v. Mercy Health Ctr., Inc., 2011 OK 2, ¶ 13, 246 P.3d 1079, 1084. Federal courts that have interpreted Rule 15 permit the amendment of party-defendants to relate back to the date of the original filing even in tort claims against the government. Roman v. Townsend, 224 F.3d 24, 28 (where the court determined that substitution would be appropriate had the proper party received notice). 7 The identity of interest concept [is] a judicial gloss on Rule 15(c)(1), [that] provides that the institution of [an] action serves as constructive notice of the action to the parties added after the limitations period expired, when the original and added parties are so closely related in business or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced. Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102 (1ST Cir. 1979). 8 This Court takes this opportunity to note that the instant case is on all fours with the following: If the originally named defendant or the party sought to be added either knowingly allows plaintiff to think plaintiff has sued the proper party or actually misleads plaintiff as to the identity of the party that should be held responsible, the new defendant will be estopped from asserting a statute-of-limitations defense. For example, when the named defendant files a general denial and appears prepared to defend on the merits, but after the expiration of the limitation period suddenly claims it is not the party to be sued, there is a presumption that the true defendant received the notice required by the rule, especially if there is a strong business or personal relationship between that party and the originally named defendant. 6A C. Wright, A. Miller, M. Kane, & R. Marcus, Federal Practice and Procedure § 1500 (1990).

a7437db5-7b6e-4d94-be67-434ec9e5a452

Government Employees Insurance Co. v. Quine

oklahoma

Oklahoma Supreme Court

GOVERNMENT EMPLOYEES INSURANCE CO. v. QUINE2011 OK 88Case Number: 107876Decided: 10/25/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff, v. JEFFERY QUINE, TRACIE QUINE, AND AMANDA WATKINS, Defendants. CERTIFIED QUESTION OF LAW FROM THE FEDERAL COURT ¶0 Government Employees Insurance Company ("GEICO") brought an action in the United States District Court for the Western District of Oklahoma against the named defendants, seeking a declaratory judgment in accordance with 28 U.S.C. § 2201 (2006). GEICO filed suit following a demand from defendants' attorney, seeking a partial advance payment of underinsured motorist benefits available through a policy issued by the insurer. In its Complaint, GEICO requested the federal court determine whether the subject policy or Oklahoma law obligated the company to unconditionally tender a partial payment of underinsured benefits when (1) a dispute had arisen between the insurer and its insured over the amount of underinsured motorist proceeds due; and (2) the parties had not arrived at a complete settlement agreement. The Honorable Robin J. Cauthron, United States District Court for the Western District of Oklahoma, issued an order certifying a question of law to the Oklahoma Supreme Court. REFORMULATED CERTIFIED QUESTION ANSWERED Gerard F. Pignato, Clayton B. Bruner, Pignato, Cooper, Kolker & Roberson, Oklahoma City, OK, for the Plaintiffs Kenneth G. Cole, Mark A. Engel, Steven S. Mansell, Mansell, Engel & Cole, Oklahoma City, OK, for the Defendants Michael Burrage, Simon Gosnell Fulmer, Carin L. Marcussen, Rex Travis, Whitten & Burrage and Travis Law Office, Oklahoma City, OK, for the Oklahoma Association for Justice, amicus curiae Thomas D. Hird, Richards & Connor, Tulsa, OK, for the Oklahoma Association of Defense Counsel, amicus curiae GURICH, J. ¶1 The United States District Court for the Western District of Oklahoma certified a single question of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2001 §§ 1601-1611.1 We have reformulated the question presented by the federal court as follows: Does an insurer's refusal to unconditionally tender partial payment of UIM benefits amount to a breach of the obligation to act in good faith and deal fairly when (1) the insured's economic/special damages have been fully recovered through tortfeasor's liability insurance; (2) the insurer promptly investigates and places a value on the claim; (3) there is a legitimate dispute regarding insured's noneconomic/general damages; and (4) benefits due have not been firmly established? Based on the facts before us and following the doctrine of stare decisis, we answer the certified legal question in the negative. Facts and Procedural History Pre-litigation ¶2 Jeffery A. Quine was the holder of an automobile insurance policy ("the policy"), issued by GEICO. Coverage under the policy included UM and UIM benefits with limits of $100,000 per person and $300,000 per occurrence. ¶3 On November 19, 2005, Amanda Watkins ("Watkins") was involved in a three-car accident where she suffered personal injuries. Watkins was a fault-free passenger riding in a vehicle driven by her mother, Tracie Quine. She was a minor child at the time of the wreck. Medical bills for her injuries totaled $9,904.05. The facts submitted by the federal court reflect that the only economic or out of pocket damages incurred by Watkins were for medical expenses.2 GEICO did not dispute that the policy provided UIM benefit coverage for Watkins. ¶4 Multiple parties were injured in the car accident. Consequently, the tortfeasor's liability insurance policy was insufficient to satisfy all of the claims asserted. Nevertheless, Watkins settled her personal injury claim with the tortfeasor for the sum of $13,890. GEICO was notified of the settlement amount and agreed to waive its subrogation rights. In August of 2007, the tortfeasor's insurance carrier paid Watkins $13,890. ¶5 On May 1, 2008, Watkins' attorney sent GEICO a demand letter, seeking payment of the $100,000 UIM limits under the policy. GEICO responded by offering $6,014.05, conditioned upon Watkins' execution of a full and complete release of any additional payment. Watkins refused this amount. On September 10, 2008, the insurer increased its offer to $8,014.05. As with the original settlement proposal, the UIM claim was contingent upon releasing GEICO from any further obligation to pay insurance proceeds. This amount was also refused by Watkins. Finally, on September 15, 2008, GEICO proposed a settlement figure of $11,014.05 to resolve Watkins' UIM claim. The offer again required Watkins to sign a full and complete release of all UIM claims. Watkins once more declined the offer by GEICO. ¶6 GEICO's initial evaluation of the UIM matter occurred in May 2008 after it received the first settlement demand from Watkins' attorney. A second evaluation took place after GEICO received Watkins' medical records. In accordance with the policy, GEICO arranged for a medical examination of Watkins by a physician of their choosing. The insurer conducted a final assessment of the UIM claim after receiving a report from the doctor. GEICO's financial appraisal of the UIM claim was based solely on Watkins' status as an underinsured motorist. The range of values placed on the claim only included Watkins' damages for personal injuries; it did not include any factors outside of the UIM benefits, such as litigation costs, expense associated with defending against suit, attorney fees, or other amounts. In the end, GEICO determined Watkins' UIM claim had a value between $6,014.05 and $11,014.05. ¶7 When the parties were unable to reach a full and complete resolution of the UIM claim, Watkins' attorney presented a demand, seeking an unconditional tender of the "undisputed amount" of benefits under the policy. In the demand, no specific dollar figure was identified by Watkins' attorney as representative of the "undisputed amount." GEICO rejected this proposal and responded by denying that it had any obligation to pay UIM benefits in advance without a complete release from Watkins. Nothing in GEICO's written insurance policy expressly required, allowed, or prohibited the insurer from withholding payment of UM or UIM benefits to its insured until the insured agreed with the company's evaluation and executed a full and complete release for any sums exceeding its evaluation.3 Additionally, nothing in the written insurance policy expressly required, allowed, or prohibited GEICO from refusing payment of benefits until an insured had agreed with the overall evaluation of a UM or UIM claim. According to GEICO, its duty under the policy was to assemble available information and to place a value on Watkins' UIM claim. Post-litigation ¶8 On October 24, 2008, GEICO filed a declaratory judgment action against defendants Jeffery Quine, Tracie Quine, and Amanda Watkins in the United States District Court for the Western District of Oklahoma, GEICO v. Quine, et al., Case No. CIV-08-1140-C. GEICO asked the federal court to enter an order determining that "neither GEICO's insurance policy nor Oklahoma law require[d] GEICO to pay to its insured what she has referred to as the 'undisputed amount.'" (Complaint, Doc. 1, Oct. 24, 2008). ¶9 Watkins filed an Answer to the Complaint on November 14, 2008. Included in the Answer was a counterclaim, charging GEICO with breach of its duty to act in good faith and deal fairly "by intentionally delaying and refusing to pay any UM/UIM benefits to or on behalf of Amanda Watkins . . . when Plaintiff knew that there was no legitimate argument as to the underinsured status of the tortfeasor." (Answer, Doc. 10, Nov. 14, 2008) (emphasis omitted). Summary of the arguments ¶10 GEICO denied that any part of Watkins' UIM claim was "undisputed." While GEICO recognized Watkins' medical bills of $9,904.05 as "uncontested," the company also maintained that a jury could logically enter a verdict between $9,904.05 (the amount of Watkins' medical bills) and $13,890.00 (the settlement figure paid by tortfeasor's insurer). GEICO believed that its evaluation of Watkins' UIM losses were incapable of absolute precision as a jury could find (1) the damages suffered by Watkins were within the range of values given the claim; or (2) the damages were greater or less than the evaluation amounts. ¶11 Although Watkins' attorney generically demanded payment of the "undisputed amount" of UIM benefits, she contends this was only done because counsel was unaware of what figures GEICO had included in their evaluations and offers. Further, Watkins maintained that the "undisputed amount" owed by GEICO should have been considered the lowest dollar figure within its UIM evaluation range. Watkins argued that GEICO was obligated under Oklahoma law to both evaluate her losses and promptly pay UIM benefits. This duty, according to the insured, extended to economic as well as noneconomic damages. ¶12 As of the date of the Order Certifying Questions of Law to the Oklahoma Supreme Court, no payment had been made to Watkins by GEICO. Analysis ¶13 Unresolved questions of law may be answered by this Court if certified questions are presented in accordance with the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2001 §§ 1601-1611. Title 20 O.S. 2001 § 1602 outlines the discretionary power afforded this Court under the Act: The Supreme Court . . . may answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state. Thus, in assessing whether a certified federal question of law should be answered by this Court, both statutory queries must be addressed. First, would resolution of the uncertainty dispose of an issue in the federal court litigation? Second, is there established and controlling law on the subject matter?4 ¶14 This Court is obligated to consider only those facts enumerated in the certification order. McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., 2008 OK 66, ¶ 2, n.4, 195 P.3d 35, 38. When addressing a certified question under 20 O.S. 2001 § 1602, we are constrained by those facts presented, and our examination is confined to resolving legal issues. Russell v. Chase Inv. Servs. Corp., 2009 OK 22, ¶ 8, 212 P.3d 1178, 1181. Because the factual scenario and legal issues presented in this matter are remarkably similar to an earlier case decided by this Court, we apply the doctrine of stare decisis to answer the certified question in the negative.5 ¶15 We first recognized tortious conduct stemming from an insurer's breach of the implicit duty to act in good faith and deal fairly with its insured in the case of Christian v. American Home Assurance Co., 1977 OK 141, ¶ 25, 577 P.2d 899, 905. By adopting this new legal tenet, however, this Court did not eliminate the insurer's right to resolve disputes in a judicial forum.6 Since Christian, our decisions have consistently recognized an insurer's right to resist payment or resort to a judicial forum to resolve a legitimate dispute. See Brown v. Patel, 2007 OK 16, ¶ 26, 157 P.3d 117, 126-127; Skinner v. John Deere Ins. Co., 2000 OK 18, ¶ 16, 998 P.2d 1219, 1223; Manis v. Hartford Fire Ins. Co., 1984 OK 25, ¶ 14, 681 P.2d 760, 762. Whether or not an insurer has breached its duty to act in good faith and deal fairly is dependent upon the particular facts and circumstances in each case. ¶16 As GEICO points out in its answer brief, the scenario faced by this Court in Garnett v. GEICO, 2008 OK 43, 186 P.3d 935, is "almost directly on point" with the details surrounding Watkins' claim. (GEICO's Answer Brief, at 4). In Garnett, we considered whether an insurer had breached its duty by failing to promptly tender what the insured perceived as an "undisputed amount" of UIM benefits. Id. ¶ 20, 186 P.3d at 943. The particular facts of that case reveal Mr. Garnett suffered personal injuries when the vehicle in which he was riding as a passenger was struck by another car. Medical expenses and lost wages for Mr. Garnett totaled roughly $7,200. GEICO insured both drivers at the time of the accident, and claims were presented for both liability and UIM coverage.7 The adjuster responsible for handling liability claims against the tortfeasor offered Mr. Garnett $8,700 to resolve the matter. The UIM adjuster conducted an evaluation of the UIM demand and estimated total damages between $11,000 and $13,000. Mr. Garnett settled his dispute against the tortfeasor by accepting the $10,000 policy limits. Ultimately, the UIM adjuster offered Mr. Garnett the top amount of the evaluation, or $3,000, subject to his execution of a release. ¶17 Mr. Garnett declined to accept GEICO's offer, believing his UIM claim was valued between $13,000 and $15,000. Instead he demanded that GEICO immediately tender the $3,000 offer as an "undisputed amount" due. GEICO refused to pay the $3,000 without a release, and a lawsuit followed. The petition alleged that GEICO acted in bad faith and breached the UM/UIM insurance contract. The trial court sustained a motion for summary judgment and concluded GEICO had not breach its duty to act in good faith and deal fairly, leaving only the insured's contract dispute for trial. After submission of the matter to a jury, a verdict was entered in favor of Mr. Garnett for $15,000, thereby obligating GEICO to pay $5,000 of UIM benefits. On appeal, the Court of Civil Appeals affirmed the order granting summary judgment on the issue of bad faith. We granted certiorari to consider whether GEICO's refusal to unconditionally tender the $3,000 as an alleged "undisputed amount constituted bad faith." Id. ¶ 23, 186 P.3d at 944. ¶18 Under the circumstances in Garnett, we determined that a legitimate dispute existed as to the value of the insured's UIM claim. Accordingly, summary judgment was an appropriate means of disposing of any action predicated on GEICO's alleged failure to tender an "undisputed amount." Id. Several fundamental principles were emphasized in reaching our decision in Garnett: The essence of the tort is the unreasonable, bad-faith conduct of the insurer. A central issue is whether the insurer had a good faith belief in some justifiable reason for the actions it took or omitted to take that are alleged to be violative of the duty of good faith and fair dealing. Before the issue of an insurer's alleged bad faith may be submitted to the jury, the trial court must first determine as a matter of law, under the facts most favorably construed against the insurer, whether the insurer's conduct may be reasonably perceived as tortious. It is not a breach of the duty of good faith for an insurer to resort to a judicial forum to settle legitimate disputes as to the validity or amount of an insurance claim. (citations & footnotes omitted). Id. ¶ 22, 186 P.3d at 944.8 ¶19 In the present case, as in Garnett, Watkins received compensation from the tortfeasor's insurer in excess of her economic/special damages. GEICO, through its evaluation, determined that Watkins was entitled to some amount of UIM benefits under the GEICO policy for the noneconomic/general damage element of her claim. The distinction between these two damage elements is especially germane under the facts of this case. The parties could not agree on an appropriate value for Watkins' general damage claim; thus, a legitimate dispute arose. GEICO's refusal to issue an advance payment on Watkins' UIM claim presents a scenario far different than one involving a request for partial payment needed to satisfy unpaid medical expenses, lost wages, or other economic/special damages--cases where the impact of the loss is direct, immediate, and measurable with reasonable certainty.9 See, e.g., Weinstein v. Prudential Prop. & Cas. Ins. Co., 233 P.3d 1221, 1229-1231, 1241 (Idaho 2010) (finding sufficient evidence to support bad faith verdict where insurer unreasonably delayed payment of UM proceeds for unpaid medical bills).10 The only portion of her claim remaining after payment from the tortfeasor were those indeterminate sums attributable to general damages, and accordingly, the facts of this case are governed by our prior decision. Conclusion ¶20 Adhering to the rule of law announced in Garnett v. GEICO, and utilizing the guiding principle of stare decisis, we conclude that an insurer's refusal to unconditionally tender a partial payment of UIM benefits does not amount to a breach of the obligation to act in good faith and deal fairly when: (1) the insured's economic/special damages have been fully recovered through payment from the tortfeasor's liability insurance; (2) after receiving notice that the tortfeasor's liability coverage has been exhausted due to multiple claims, the UIM insurer promptly investigates and places a value on the claim; (3) there is a legitimate dispute regarding the amount of noneconomic/general damages suffered by the insured; and (4) the benefits due and payable have not been firmly established by either an agreement of the parties or entry of a judgment substantiating the insured's damages. REFORMULATED CERTIFIED QUESTION ANSWERED TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, GURICH, JJ. - CONCUR REIF and COMBS, JJ. - DISSENT FOOTNOTES 1 As noted by Judge Cauthron, Title 20 O.S. 2001 § 1602.1 authorizes this Court to reformulate a certified question of law. Because the tortfeasor tendered payment exceeding Amanda Watkins' economic/special damages, we have modified the certified question to fit the specific facts presented. 2 Economic or special damages have been defined as those which can either be assigned an exact dollar figure or calculated with reasonable mathematical certainty (medical bills, lost income, etc.). 25 C.J.S. Damages, § 3 (2011) (footnotes omitted). Noneconomic or general damages include elements which cannot be fixed with an exact monetary amount (pain and suffering, physical impairment, disfigurement, etc.). Id. We also note the definition of such damage elements as defined in 23 O.S.Supp. 2009 § 61.2. Although this statutory section was not in effect at the time of Watkins' injuries, we find the consistent definitions persuasive. 3 Prior to April of 2009, GEICO's internal claim practice did not require unconditional partial payments of UM or UIM proceeds to its insureds unless a claimant accepted the company's valuation and signed an absolute written release. New GEICO protocol directs adjusters to pay medical bills or lost wages on UM claims based on the company's valuation with or without a written release. Additionally, GEICO will now compensate an insured for UIM benefits, without a complete settlement and signed release, if the claimant's recovery from a tortfeasor is less than the uncontested medical bills or lost wages. (Order Certifying Questions of Law, at 4). 4 We have previously declined to answer a certified federal question based on the existence of controlling precedent. Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, ¶¶ 4, 16, 127 P.3d 611, 612, 615. But see Hamilton By and Through Hamilton v. Vaden, 1986 OK 36, ¶ 6, 721 P.2d 412, 414-415 (answering certified question under section 1602 based on prior decision involving precise legal/factual issue). 5 "Stare decisis should be more than a fine sounding phrase. This is especially true for us, because unless we respect . . . the decisions of this Court we can hardly expect that others will do so. Accordingly, a substantial departure from precedent can only be justified . . . in the light of experience with the application of the rule to be abandoned or in the light of an altered historic environment . . . ." Phillips v. Okla. Tax Comm'n, 1978 OK 34, ¶ 48, 577 P.2d 1278, 1285-1286 (citations omitted). 6 "We do not hold that an insurer who resists and litigates a claim made by its insured does so at its peril that if it loses the suit or suffers a judgment against it for a larger amount than it had offered in payment, it will be held to have breached its duty to act fairly and in good faith and thus be liable in tort. We recognize that there can be disagreements between insurer and insured on a variety of matters such as insurable interest, extent of coverage, cause of loss, amount of loss, or breach of policy conditions. Resort to a judicial forum is not per se bad faith or unfair dealing on the part of the insurer regardless of the outcome of the suit." Christian ¶¶ 25-26, 577 P.2d at 904-905. 7 Mr. Garnett also alleged GEICO adjusters had engaged in bad faith "dual representation" by conferring and colluding on the two separate claims. Garnett, ¶ 24, 186 P.3d at 944. This circumstance is not present in the instant matter; however, the distinction does not render Garnett any less persuasive. 8 Other jurisdictions have likewise declined to impose liability on an insurer for failing to make partial or advance payment of UIM or UM claims. See, e.g., Zappile v. Amex Assur. Co., 928 A.2d 251, 257 (Pa. Super. Ct. 2007) (Pennsylvania law does not require insurers to engage in piecemeal settlement through partial payment of lost wage component of UIM claim); Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 887 (Pa. Super. Ct. 2000) (concluding that settlement offers or reserves set aside for insureds' claims do not equate to "undisputed amounts" of benefits due under a policy); Lefevre v. Westberry, 590 So. 2d 154, 161-162 (Ala. 1991) (holding an insurer does not act in bad faith when a legitimate dispute exists over the amount of damages and failing to issue advance payments is not a breach of insurers duty); Voland v. Farmers Ins. Co., 943 P.2d 808, 810 (Ariz. Ct. App. 1997) (implied covenant of good faith and fair dealing does not require an insurer to pay undisputed amounts to its insured prior to execution of a release or judgment establishing the amount due). 9 GEICO concedes in its brief that an insurer might have a duty to issue a partial distribution of benefits without securing a release in some scenarios. 10 Mrs. Weinstein and her daughter were injured in an automobile accident with an uninsured motorist. The Weinsteins were insured through a policy that provided both UM and MedPay coverages. After significant medical bills had accumulated and MedPay benefits were exhausted, collection agencies and health care providers began contacting the family in an effort to obtain payment on the outstanding debt. According to the Weinsteins, the insurer's refusal to advance partial amounts of UM benefits in satisfaction of the unpaid bills resulted in damage to their credit and caused embarrassment, stress, and depression. Weinstein, 233 P.3d at 1230.

34c23577-7c90-478d-960e-ad091edfa422

Reed v. J.P. Morgan Chase Bank

oklahoma

Oklahoma Supreme Court

REED v. JP MORGAN CHASE BANK2011 OK 93Case Number: 108044Decided: 11/01/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ELEANOR W. REED, ROBERT W. REED, DIANE ALLYSON MARTIN, and MEREDITH ALLENE FARMER, Plaintiffs/Appellants, v. JP MORGAN CHASE BANK, NA And JENNIFER R. HOLLON, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Appellants, trust beneficiaries, petition for certiorari to challenge the decision of the Court of Civil Appeals, Division I, which upheld a determination by the trial court regarding the trustee's previously-adjudicated ability to draw on the trust's principal. COCA agreed with the trial court's finding that a previous order in the case was dispositive of the current claim and, thus, barred by the doctrine of res judicata. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED. Lawrence A.G. Johnson, Tulsa, Oklahoma, for Plaintiffs/Appellants. Daniel R. Ketchum, Jeff M. Bonds, NEWTON, O'CONNOR, TURNER & KETCHUM, P.C., Tulsa, Oklahoma, for JP Morgan Chase Bank, N.A., Defendants/Appellees. Blaine G. Frizzell, FULLER, CHLOUBER & FRIZZELL, LLP, Tulsa, Oklahoma, for Jennifer R. Hollon, Defendant/Appellee. WINCHESTER, J. ¶1 The issue presented herein is whether or not Appellants' emergency request to modify the terms of a trust, created by the Last Will and Testament of B.B. Weatherby, is barred by the doctrine of res judicata based on a previous order providing instructions for payment of the trust's principal. We find that it is not. BACKGROUND ¶2 The Last Will and Testament and the sole codicil of B.B. Weatherby ("Testator") was admitted to probate on November 18, 1969, and finalized on December 19, 1973. The will established a testamentary trust ("Trust") under which Testator's only daughter, Eleanor W. Reed ("Reed"), was the primary beneficiary and co-trustee. The Trust was funded with $1,550,000 and the language of the Trust instrument authorized payment of up to half of the income, payable at least quarterly, as well as up to half of the Trust principal for the support and well-being of Reed.1 ¶3 In 1998, Reed filed a Petition for Instructions in district court in Tulsa County, requesting the court determine what distributions were permitted under the Trust. Specifically, Reed sought instructions for the co-trustee, Bank One Trust Company, N.A., to pay certain of Reed's expenses from the Trust's principal.2 The district court granted Reed's request finding that it was the Testator's intent "that in addition to being entitled to receive one-half of the income from the Trust, she be provided for by the Trust principal until such time as Trust principal was reduced to one-half" of the amount of the Trust value, approximately $1,550,000 at that time. The district court found that the requested items were of the type of expenses Reed's father would have desired to be paid on her behalf, finding that the payments were necessary for her health, happiness, maintenance, welfare or comfort as specifically provided by the terms of the Trust. ¶4 In 2007, Reed, and three of her four children, Robert W. Reed, Diane Allyson Martin, and Meredith Allene Farmer (Appellants), filed the present action in Wagoner County District Court seeking an emergency modification of the terms of the Trust to allow Appellee, J.P. Morgan Chase Bank, N.A. (Bank)3, currently sole trustee of the Trust, to make payments from the remaining one-half of the Trust's principal. In an Amended Petition, Appellants stated that Reed "is an incapacitated person afflicted with Alzheimer's disease, and her condition constitutes an emergency condition which will necessitate her being housed in a nursing home. She is wheel-chair bound, 84 years old, and in precarious health." Appellants maintain that Testator would have wanted Reed, his only child, to have the use of the remaining Trust funds to provide for her well-being. ¶5 Appellants requested the emergency modification to allow payments for nursing care as well as for reimbursement of expenses for home care for Reed. Each of the three Appellant children, remaindermen under the Trust, signed consents to show their support for the invasion of the Trust's principal. Appellee, Jennifer R. Hollon ("Hollon"), Reed's remaining child, filed an answer objecting to the Amended Petition as did the Bank.4 Appellees alleged the affirmative defenses of res judicata and issue preclusion. ¶6 Bank filed a motion to transfer the case to Tulsa County, or in the alternative, a motion for summary judgment. The Wagoner County District Court granted the motion to transfer and Bank reasserted its motion for summary judgment in Tulsa County. Bank argued that Testator's intent regarding the payment from principal had been determined in the 1998 Order and, as such, the claims asserted in the Amended Petition are barred by the doctrine of res judicata and collateral estoppel. ¶7 Appellants argue that the defenses of res judicata and issue preclusion are inapplicable because the current action to modify the trust by reason of an emergency is an entirely different issue than that decided in the 1998 Order. Appellants urge that it was Testator's intent in creating the Trust to provide for his only daughter's "health, happiness, maintenance, welfare or comfort" during her lifetime, with any remainder to go to his grandchildren. Appellants also urge that a court of equity may modify the terms of a trust in order to preserve it. ¶8 The trial court disagreed with Appellants and found that the 1998 Order made a judicial finding that the co-Trustee was not permitted to make any payments for the benefit of Reed "which would reduce the principal of the trust below $780,000, which was a sum equal to one half of the amount of the Trust at the time it was established." Accordingly, the trial court found that Appellants' claims to modify the Trust were precluded by the doctrine of res judicata. COCA declined to reach the issue of whether the trust might be subject to modification finding that the Testator's intent regarding the invasion of principal was determined in the 1998 Order and limited Reed's share to half of the corpus. We granted certiorari. DISCUSSION ¶9 Appellants bring this appeal from a ruling that their request for emergency modification of the Trust is barred by res judicata. The doctrine of res judicata is triggered when a judgment rendered by a court of competent jurisdiction upon a question involved in one suit is conclusive upon that question in any subsequent litigation between the same parties. Erwin v. Frazier, 1989 OK 95, ¶ 16, 786 P.2d 61, 64; Dearing v. State ex rel. Com'rs of Land Office, 1991 OK 6, ¶ 7, 808 P.2d 661, 664. To bar a case on the basis of res judicata, there must be (1) an identity of subject matter, (2) an identity of parties, (3) an identity of the capacity of parties, and (4) an identity of the cause of action. Dearing v. State ex rel. Com'rs of Land Office, 1991 OK 6, ¶ 8, 808 P.2d 661, 664; Carris v. John R. Thomas & Assoc., 1995 OK 33, ¶ 10, 896 P.2d 522, 527. ¶10 Appellees urge that each of the requisite elements have been met. While we agree that the subject matter, the parties, and the capacity of the parties remain the same, we cannot agree that the cause of the action is the same as that in the 1998 matter. The focus of the 1998 lawsuit was to provide instructions to the trustee to make payments from half of the Trust corpus on behalf of Reed. This payment was expressly provided for in the Trust instrument. In the present action, Appellants are seeking, due to an unforeseen medical emergency, to modify the express terms of the Trust and to show that Testator would have intended Reed's present needs be cared for even if it meant invading the remaining half of the Trust corpus5. Appellees urge that the 1998 Order broadly determined Testator's intent with respect to all matters involving invasion of the Trust principal and that his intent should not be revisited. ¶11 We see no connection between the 1998 Order and the issue here under consideration. The prior judgment did not involve a request for modification to the Trust nor was the current medical emergency present at the time of that decision. At no time did the trial court have to determine whether Testator would have intended his only daughter's health and well-being to be compromised for the sake of maintaining a balance of half the Trust principal. As such, Appellees' defense of res judicata must fail. ¶12 Appellees also urge the defense of issue preclusion, or collateral estoppel. For issue preclusion to apply, the precise question at issue must have been raised and determined in the prior lawsuit. Carris v. John R. Thomas & Assoc., 1995 OK 33, ¶ 11, 896 P.2d 522, 527-528; Hesser v. Central National Bank & Trust Co., 1998 OK 15, ¶ 17, 956 P.2d 864, 868. It is uncontroverted that the issue of modification of the Trust never surfaced in the 1998 action. As such, the defense of issue preclusion also fails. ¶13 Whether Appellants' request for modification should be granted is not before us today. Accordingly, this matter must be remanded back to the trial court to determine whether the requested modification should be allowed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED. CONCUR: TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WINCHESTER, EDMONDSON, REIF, COMBS, GURICH, JJ. DISSENTS: WATT, J. FOOTNOTES 1 Article IV of the Will, entitled "Provisions Relating to Distribution of Income and Principal," pertains to the Trust and provides in pertinent part: 3.a) The income and principal of Trust B shall be administered and distributed by the Trustee during the period of time ending with the date of the death of the survivor Ethel R. Weatherby and Eleanor Weatherby Reed as follows: i) .... ii) During the lifetime of my daughter, Eleanor Weatherby Reed, one-half of the net income shall be paid to her in quarterly or more frequent installments. After the death of Eleanor Weatherby Reed, at any time or from time to time there may be paid in equal shares to such of my grandchildren as are living on the date of each such distribution so much of such one-half of the net income as in the sole discretion of the Trustee is necessary or advisable for the health, happiness, education, maintenance, welfare or comfort of such grandchildren. iii) At any time or from time to time there may be paid to Eleanor Weatherby Reed so much of the principal (up to an aggregate of one-half thereof) as in the sole discretion of the corporate Trustee is necessary or advisable for her health, happiness, maintenance, welfare or comfort.... 2 Although Reed's Petition for Instructions is not part of the record on appeal, it appears that she had insufficient income to pay, and sought to invade the trust principal, for such items as her real property taxes, residential insurance expenses, and any uninsured medical and dental expenses incurred by her on a quarterly basis as well as her funeral expenses. 3 J.P. Morgan Chase Bank, N.A., is the successor in interest to Bank One Trust Co., N.A. 4 Appellee Hollon was served with the Petition in the 1998 case but never made an appearance and, thus, was found to be in default. 5 It is well-settled in Oklahoma that in construing a trust document, the primary purpose is to ascertain and give effect to the creator's intent, which should control when not in conflict with established principles of law. Crowell, v. Shelton, 1997 OK 135, 948 P.2d 313, 315; In re Will of Dimick, 1975 OK 10, 531 P.2d 1027, 1030; Hurst v. Kravitz, 1958 OK 290, 333 P.2d 314.

6fd04723-3363-48d5-9c0b-a6db4fcf3c94

Howard v. Nitro-Lift Technologies, LLC

oklahoma

Oklahoma Supreme Court

HOWARD v. NITRO-LIFT TECHNOLOGIES2011 OK 98Case Number: 109003Decided: 11/22/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. EDDIE LEE HOWARD and SHANE D. SCHNEIDER, Plaintiffs/Appellants,v.NITRO-LIFT TECHNOLOGIES, L.L.C., Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF JOHNSTON COUNTY ¶0 The plaintiffs/appellants, Eddie Lee Howard (Howard) and Shane D. Schneider (Schneider) (collectively, employees), both Oklahoma residents hired in Tishomingo, entered an employment contract with the defendant/appellee, Nitro-Lift Technologies, L.L.C. (Nitro-Lift/employer). For two years following termination, the contract prohibits the employees from: working for, leasing to, or selling equipment to competitors; canvassing, soliciting, approaching, or enticing away any past or present Nitro-Lift customer or supplier; and engaging, employing, soliciting, or contacting officers and employees of the employer with the intent to employ the same. The contract contains an arbitration agreement requiring application of Louisiana law with disputes to be resolved in Houston, Texas. After the employees terminated their employment with Nitro-Lift, they went to work for a competitor in Arkansas. The employer filed an arbitration proceeding in Houston. Howard and Schneider filed an application for a declaratory judgment and injunctive relief in Johnston County asserting that the non-competition agreement violated public policy. The district court initially granted the employees a temporary injunction, prohibiting the employers from continuing the arbitration proceedings in Texas. Thereafter, the employer filed a motion to dismiss. After considering the parties' briefs and arguments, the district court found the arbitration clause to be valid on its face and reasonable in its terms, lifted the temporary restraining order, and granted the motion to dismiss. We hold that: 1) in conformance with our prior jurisprudence, the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement; 2) as drafted, the non-competition covenants are void and unenforceable as against Oklahoma's public policy expressed by the Legislature's enactment of 15 O.S. 2001 §219A; and 3) judicial modification of the covenant not to compete is inappropriate where, as here, the contractual provisions would have to be substantially excised, leaving only a shell of the original agreement, and would require the addition of at least one material term. REVERSED AND REMANDED. Micah Knight, Durant, Oklahoma, for Plaintiffs/Appellants,Kelli M. Masters, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Oklahoma, for Defendant/Appellee. WATT, J.: ¶1 Three issues1 must be addressed to resolve this cause. They are whether: 1) the validity of the covenants not to compete should be resolved by the arbitrator or this Court; 2) the underlying covenant is void as against public policy pursuant to 15 O.S. 2001 §219A;2 and 3) if so, can it be modified judicially to conform with the controlling statutory provision.3 ¶2 We determine that the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement. Our determination is supported by our prior jurisprudential pronouncements in: Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, 13 P.3d 474; Cardiovascular Surgical Specialists, Corp. v. Mammana, 2002 OK 27, 61 P.3d 210; Thompson v. Bar-S Foods Co., 2007 OK 75, 174 P.3d 567; and Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16. ¶3 As drafted, we hold that the non-competition covenants are void and unenforceable as against Oklahoma's public policy expressed by the Legislature's enactment of 15 O.S. 2001 §219 A. 4 They contain provisions, for the period of two years, prohibiting: 1) employment with any oil or gas entity located in the United States and generating five percent (5%) of its gross revenues from nitrogen generation; 2) solicitation of any past or present Nitro-Lift customer or supplier; and 3) employing or soliciting employment of any Nitro-Lift officer or employee. Finally, we determine that judicial modification of the contractual provisions is inappropriate where, as here, the contractual provisions would have to be substantially rewritten to cure multiple defects.5 FACTS ¶4 Howard was hired by Nitro-Lift initially on August 18, 2008 at its offices in Tishomingo. At that time, Howard had approximately twenty (20) years' experience in the oil and gas industry. Due to a dispute over hours worked, compensation paid, and time off, Howard quit in November of 2009. Approximately a month later, Nitro-Lift rehired him. Based on similar concerns to those he had in 2009, Howard again resigned in April of 2010. ¶5 In July of 2009, Nitro-Lift hired Schneider at its office in Tishomingo. The employee had prior experience in the oil field with Halliburton. Harboring complaints similar to those of Howard, Schneider quit on June 11, 2010. ¶6 Both employees signed confidentiality/non-compete agreements with Nitro-Lift at their hiring.6 The agreements provide that neither employee, for a period of two (2) years following separation, will: be employed by any business involved in nitrogen generation7 in the United States; solicit any past or present customer or supplier of the employer; or engage, employ, solicit, or contact any Nitro-Lift officer or employee for the purpose of recruiting the officer or employee for employment. They also bar the employees from loaning money to a business engaging in nitrogen generation and selling or leasing equipment to any person or company of like kind. ¶7 After July 8, 2010, Nitro-Lift served the employees with a demand for arbitration alleging that the employees had breached the non-compete agreement and should be ordered to refrain: a) from disclosing or using Nitro-Lift's confidential information; b) from inducing its employees to leave their employment with the company; and c) from competing or interfering with the employer's business relationships or soliciting its customers.8 The agreement calls for the application of Louisiana law in an arbitration proceeding to be conducted in Houston, Texas.9 ¶8 The instant cause arises out of the employee's petition for declaratory judgment and injunctive relief filed in the District Court of Johnston County on October 14, 2010. The employees sought judgment declaring the non-compete agreement null and void and enjoining enforcement of the same. The district court granted the employees a temporary restraining order pending a hearing. On November 9, 2010, Nitro-Lift filed a motion to dismiss. The cause was heard on November 23, 2010. An order issued that same day in which the district court found the arbitration agreement to be valid on its face and reasonable in its terms and scope. Nitro-Lift's motion to dismiss was granted. The district court denied the employees' motion for a stay pending appeal filed on December 2, 2010. We also declined to issue a stay. However, we granted the employees' motion to retain the cause on January 19, 2011. ¶9 On October 18, 2011, we issued a show cause order directing the parties to address the effect of 15 O.S. 2001 §219A on the cause. Briefs were filed on October 28th and October 31st by the employees and the employer, respectively. Standard of Review10 ¶10 In Oklahoma, the rules governing appellate review in regard to injunctive relief are settled. Matters involving the granting or denying of injunctive relief are of equitable concern.11 A judgment issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence.12 An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.13 Nevertheless, this Court is not bound by the findings or reasoning of the lower court. Rather, we independently consider, weigh, and examine the evidence.14 ¶11 We remain mindful that injunctions are extraordinary remedies that should not be lightly granted.15 Entitlement to injunctive relief must be established by clear and convincing evidence and the nature of the complained of injury must not be nominal, theoretical, or speculative.16 Nevertheless, the question of the existence of a viable, enforceable agreement to arbitrate is a question of law which this Court reviews de novo.17 ¶12 a) Oklahoma case law supports a determinationthat the existence of an arbitration agreementin an employment contract does not prohibitjudicial review of the underlying agreement. ¶13 Nitro-Lift argues that the issue of the validity of the covenants not to compete is for the arbitrator. In doing so, the employers rely upon United States Supreme Court jurisprudence. The employees assert that jurisdiction lies in this Court based on our pronouncements addressing the issue. We agree with the employees. ¶14 Our jurisprudence controls this issue.18 Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, 13 P.3d 474 held that the Uniform Arbitration Act, 12 O.S. Supp. 2006 §1851, et seq.19 did not prohibit this Court from reviewing a contract submitted to arbitration where one party asserted that the underlying agreement was void and unenforceable. In Cardiovascular Surgical Specialists, Corp. v. Mammana, 2002 OK 27, 61 P.3d 210, we relied on Wyatt-Doyle in determining that an arbitrator's review of a contract would not prevent this Court from considering the contract's validity. Furthermore, we re-emphasized a principle first enunciated in Wyatt-Doyle, that the public right to be free from restraint of trade "cannot be waived by the parties' agreement to submit the issue of the validity of a contract provision to arbitration. A void provision provides no legal basis for enforcement whether through arbitration or judicial pronouncement." We reviewed an underlying employment contract in Thompson v. Bar-S Foods Co., 2007 OK 75, 174 P.3d 567 and held that no arbitration was required where the agreement was not based on a valid contract. ¶15 Most instructive on Nitro-Lift's arguments is Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16. Bruner contains an exhaustive overview of the United States Supreme Court decisions construing the Federal Arbitration Act (Federal Act), 9 U.S.C. §§1, et seq. and state arbitration law.20 The Supreme Court decisions discussed therein, and relied upon by Nitro-Lift here, were found not to inhibit our review of the underlying contract's validity.21 ¶16 Nitro-Lift's attempts to distinguish the cases discussed above are unpersuasive. We hold that the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement. Our determination is supported by our prior jurisprudential pronouncements in: Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, 13 P.3d 474; Cardiovascular Surgical Specialists, Corp. v. Mammana, 2002 OK 27, 61 P.3d 210; Thompson v. Bar-S Foods Co., 2007 OK 75, 174 P.3d 567; and Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16.22 ¶17 b) As drafted, the covenants are void and unenforceable as againstOklahoma's public policy expressed through legislative mandatein 15 O.S. 2001 §219A. ¶18 Nitro-Lift argues that the covenants not to compete are reasonable and necessary to protect the confidential information and technical knowledge imparted to the employees during training. The employer asserts that the covenants should be enforced as a necessary step in protecting Nitro-Lift in the marketplace. The employees contend that they received no confidential information during their employment with Nitro-Lift and that the non-compete provisions of the employment contract are void23 as a matter of law pursuant to 15 O.S. 2001 §217.24 Based on the Legislature's more precise statement on the matter of the enforceable parameters of a contract between an employer and an employee containing a covenant not to complete in 12 O.S. Supp. 2006 §219A,25 we agree.26 ¶19 The primary goal of statutory interpretation is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed by the statutory language.27 Intent is ascertained from the whole act in light of its general purpose and objective28 considering relevant provisions together to give full force and effect to each.29 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.30 Statutes are interpreted to attain that purpose and end31 championing the broad public policy purposes underlying them.32 Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.33 If the language is plain and clearly expresses the legislative will, further inquiry is unnecessary.34 ¶20 Title 15 O.S. 2001 §219A is the Legislature's pronouncement on Oklahoma's public policy35 regarding covenants not to compete. It provides that where an employee has executed a covenant not to compete with an employer, the employee "shall be permitted to engage in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer." The statute goes on to provide that any provision in a contract between an employer and an employee in conflict with the provisions of the section "shall be void and unenforceable."36 ¶21 Subsection A utilizes the mandatory term, "shall,"37 in association with the employee's right to engage in the same or similar business as that of the employer while subsection B provides that "any" provision in a contract between the employer and employee conflicting with those terms "shall be void and unenforceable." The term "any" is all-embracing and means nothing less than "every" and "all."38 The plain, clear, unmistakable, unambiguous, and unequivocal language of 15 O.S. 2001 §219A prohibits employers from binding employees to agreements which bar their ability to find gainful employment in the same business or industry as that of the employer.39 The only exception allowed by the statutory provision is that the employee may be barred from soliciting goods or services from the employer's established customers. ¶22 The covenants not to compete contain provisions, for the period of two years, prohibiting the employees from accepting employment with any oil or gas entity located in the United States which generates five percent (5%) of its gross revenues from nitrogen generation. The same clause prevents the employees from: "owning, managing, operating, joining, controlling or participating" in a similar business; being a director, officer, representative, partner, or consultant in any business engaging in nitrogen generation; loaning money to a like enterprise; or selling or leasing equipment to any person or business which has any significant portion of its business as nitrogen generation, whether or not the equipment is related to that particular portion of the business. The covenant conceivably could be interpreted to prevent the employees from taking jobs in any capacity from a competing business, even one not directly related to the nitrogen generation process. The agreement not only bars active solicitation of current customers or suppliers of Nitro-Lift, it also forbids the employees from approaching past customers and suppliers. Furthermore, it operates to inhibit the employees from employing or engaging any Nitro-Lift officer or employee even where those individuals might seek employment on their own initiative rather than from any intervention by the employees. ¶23 The non-competition contracts go well beyond the bounds of what is allowable under §219A and violate the legislatively expressed public policy. Therefore, we hold that, pursuant to 15 O.S. 2001 §219A, the covenants not to compete are void and unenforceable as against Oklahoma's public policy expressed through legislative mandate. ¶24 c) Judicial modification of the covenant not to competeis inappropriate where, as here, the contractual provisionswould have to be substantially excised, leaving only ashell of the original agreement, and would require theaddition of at least one material term. ¶25 To bring the non-competition agreement within the bounds of what is allowable under 15 O.S. 2001 §219A, we would have to decimate its provisions. Essentially, subsections (k)(i) and (k)(iii) would have to be stricken in their entirety, leaving only subsection (k)(ii) relating to solicitation of past or present customers or suppliers of Nitro-Lift. However, that subsection also suffers shortcomings and infirmities. ¶26 Subsection (k)(ii) prohibits the employee from canvassing, soliciting, approaching or enticing away Nitro-Lift's past or present customers or suppliers. Section 219A allows an employer to prohibit solicitation by an employee of "established customers," but it says nothing about barring purchases from an employer's suppliers. Undoubtedly, the Legislature, in utilizing the term "established customer," had in mind those businesses and customers wherein a relationship was ongoing and anticipated to continue into the future.40 However, the non-competition agreement does not define what is a "present customer"41 which might stretch to encompass temporary or single-event relationships. ¶27 The covenant not to compete contains a severability provision. Judicial modification is justified if the contractual defect can be cured by imposition of reasonable limitations concerning the activities embraced, time, or geographical limitations. Nevertheless, "there is more amiss here than can be reformed effectively."42 Two of the three provisions of the contract would require delineation in their entirety. To conform with the restrictions of 15 O.S. 2001 §219A, we would have to determine whether the phrase "present customers" within the agreement conformed to the Legislature's term "established customer," thereby supplying a material term of the contract. We would also be required to excise the portion of this subsection (k)(ii) relating to past customers and suppliers. ¶28 We will not reform a covenant not to compete so offensive that it would require us to supply material terms.43 We hold that the breadth of the delineation required to bring the non-competition agreements into conformance44 and the necessity of adding at least one material term to the contract prevents judicial modification. CONCLUSION ¶29 Through the enactment of 15 O.S. 2001 §219A, the Legislature has expressed its intent with relation to the viability of covenants not to compete in the employment context. This Court does not extend its auspices, in determining the validity of a statute, to consider its propriety, desirability, wisdom or practicability. These matters are left to the legislative department.45 To do so here would be especially egregious. The Legislature used mandatory directives in 15 O.S. 2001 §219A regarding the boundaries of any non-competition agreement extracted as a condition of employment. In doing so, it utilized plain, clear, unmistakable, unambiguous, and unequivocal language leaving no room for judicial interpretation. ¶30 In conformance with our prior jurisprudence, we hold that the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement. As drafted, we determine that the non-competition covenants are void and unenforceable as against Oklahoma's public policy as expressed by the Legislature's enactment of 15 O.S. 2001 §219A. Finally, because judicial modification cannot be accomplished without rewriting the agreement to cure multiple defects, leaving only a shell of the original agreement, and would require the addition of at least one material term, it is inappropriate. ¶31 Discretion is abused, so as to warrant reversal, when a trial judge makes a clearly erroneous conclusion and judgment, against reason and the evidence.46 On this record, we are constrained to hold that the lifting of the temporary injunction and the failure to grant the employees permanent relief was without a basis in law, reason, or evidence and an abuse of discretion. The cause is reversed and remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. ALL JUSTICES CONCUR. FOOTNOTES 1 The cause was retained to determine whether Oklahoma's public policy prohibited enforcement of an employment agreement providing that arbitration should take place in another jurisdiction with the application of yet a different state's law. Nevertheless, the cause's resolution on other grounds would render any statement on the issue an advisory opinion. See, Ball v. Wilshire Ins. Co., 2007 OK 80, fn. 3, 184 P.3d 463; Scott v. Peterson 2005 OK 84, ¶27, 126 P.3d 1272; City of Midwest City v. House of Realty, Inc., 2004 OK 56, fn. 14, 100 P.3d 678. All issues addressed herein are fairly comprised within the petition for declaratory judgment and injunctive relief filed in the district court on October 14, 2010 and within the Motion of Appellants that Appeal be Retained for Disposition by Supreme Court filed on December 14, 2010. Burrell v. Burrell, 2007 OK 47, fn. 10, 192 P.3d 286 [An argument need not be artfully drawn as long as it is fairly comprised within the pleadings presented to the trial court.] Furthermore, the parties were given the opportunity to address the effect of 15 O.S. 2001 §219A, see note 2, infra, on the non-competition provision by this Court's order of October 18, 2011. We note that in Bakhsh v. JACRRC Enterprise, Inc., 1995 OK CIV APP 40, ¶9, 895 P.2d 746, the Court of Civil Appeals determined that a forum selection clause may be so unreasonable that it will be gravely difficult and inconvenient resulting in a party being deprived of a day in court. If so, it could be declared unenforceable. For the same proposition, see, M/S Bremen v. Zapata Off-Shore, Co., 407 U.S. 1, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). See generally, M. Rosenhouse, J.D., "Validity and Effect of Stipulation in Contract to Effect that It Shall Be Governed by Law of Particular State which is neither Place where Contract Is Made nor Place Where It Is To Be Performed," 16 A.L.R.4th 967 (1982); F. Dougherty, J.D., "Validity of Contractual Provision Limiting Place or Court in which Action May Be Brought," 31 A.L.R.4th 404 (1984); and W. Heiser, "Forum Selection Clauses in State Courts: Limitations on Enforcement after Stewart and Carnival Cruise," 45 Fla.L.Rev. 361 (1993). 2 Title 15 O.S. 2001 §219A providing: "A. A person who makes an agreement with an employer, whether in writing or verbally, not to compete with the employer after the employment relationship has been terminated, shall be permitted to engage in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer. B. Any provision in a contract between an employer and an employee in conflict with the provisions of this section shall be void and unenforceable." 3 Id. Prior to today's opinion, there have been only two non-precedential, distinguishable pronouncements on 15 O.S. 2001 §219A, see note 2, infra. The first came from the United States District Court in Eakle v. Grinnell Corp., 272 F. Supp. 2d 1304 (E.D.Okla. 2003). While the federal court refused to apply §219A retroactively, its assessment of the effect of the statute is consistent with our ruling today. The opinion provides in pertinent part: ". . . Initially, it is argued by Eakle that the NCA violates section 219A because of its duration, geographic restriction, and overall comprehensive nature of the prohibited activities. Eakle accurately points out that section 219A permits employees to enter into non-compete agreements with employers, but only to the extent 'the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.' 15 O.S. §219A(A). Otherwise, the employee is 'permitted to engage in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer.' Id. Admittedly, the NCA goes beyond section 219 A(A)'s specific prohibition against the active solicitation of established customers by, among other things, precluding Eakle from owning, operating, or being employed by any similar business in competition with Grinnell. . . ." Inergy Propane, LLC v. Lundy, 2009 OK CIV APP 8, 219 P.3d 547 involved a covenant not to compete executed in association with a sale of goodwill, a situation not presented here. In consideration for employment, Lundy signed a confidentiality and non-solicitation agreement protecting Inergy's customer information and lists, pricing, business strategies, and trade secrets. It also prohibited Lundy, for one year, from soliciting the hiring of Inergy employees, and, for two years, soliciting or diverting customers within fifty (50) miles of the company's business locations where Lundy had worked. The COCA determined, at least in some instances, the rule of reason would be applicable even under the confines of 15 O.S. 2001 §219A. It held that the statute addressed the balance of competitive effects under a rule of reason analysis finding the non-solicitation agreement enforceable. Pronouncement by an inferior federal court, although not binding of this Court, may have persuasive value. See, Boswell v. Schultz, 2007 OK 94, ¶15, 175 P.3d 390; Medipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶18, 90 P.3d 546. Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1; 20 O.S. 2001 §§30.5 and 30.14. 4 Title 15 O.S. 2001 §219A, see note 2, supra. 5 In reaching our decision today, we consider extant federal and state precedent. Nevertheless, our determinations rest squarely within Oklahoma law which provides bona fide, separate, adequate, and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). 6 Although an employment agreement had been executed when he was originally hired, Howard alleges that no agreement was signed when he went back to work. 7 The Confidentiality/Non-Compete agreement defines "nitrogen generation" as: ". . . the use of non-cryogenically generated nitrogen for applications on wellsites in the oil and gas industry in the United States . . ." 8 The confidentiality/non-compete agreements provide in pertinent part: ". . . k) In consideration of the receipt of Confidential Information during employment, the receipt of compensation, each element of compensation being hereby acknowledged by Employee as adequate, Employee hereby covenants and agrees that for two years from the date of separation from employment with Nitro-Lift, regardless of the reason or cause for separation, he will not directly or indirectly; [sic] i) own, manage, operate, join, control or participate in or be connected with (whether as a director, officer, employee, agent, representative, partner, consultant or otherwise), or loan money to or sell or lease equipment to, any business or Person, which wholly or in any significant part, engages in Nitrogen Generation (as defined below) (a 'Competing Business') . . . The phrase 'Nitrogen Generation' means the use of non-cryogenically generated nitrogen for applications on wellsites [sic] in the oil and gas industry in the United States; ii) for purposes related to any Competing Business or about whom Employee has Confidential Information, canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from Nitro-Lift or its Affiliates any Person who or which is a past or present customer or supplier of Nitro-Lift or any of its Affiliates, or cause any such Person to curtail or cancel its business with Nitro-Lift or its Affiliates; or iii) engage or employ, or solicit or contact with a view to the engagement or employment of any Person who is an officer or employee of Nitro-Lift or any of its Affiliates, or induce or attempt to influence any such Person to terminate his or her employment. The parties agree and acknowledge that the limitations as to time, geographical area and scope of activity to be restrained as set forth in Section 4(k) are reasonable and do not impose any greater restraint than is necessary to protect the legitimate business interests of Nitro-Lift. To the extent that any part of this Section 4(k) may be invalid, illegal or unenforceable for any reason, it is intended that such part shall be enforceable to the extent that a court of competent jurisdiction shall determine that such part, if more limited in scope, would have been enforceable, and such part shall be deemed to have been so written and the remaining parts shall as written be effective and enforceable in all events." 9 The confidentiality/non-compete agreements provide in pertinent part: ". . . ARBITRATION a) Any dispute, difference or unresolved question between Nitro-Lift and the Employee (collectively, the 'Disputing Parties') shall be settled by arbitration by a single arbitrator mutually agreeable to the Disputing Parties in an arbitration proceeding conducted in Houston, Texas . . . CONSTRUCTION THIS AGREEMENT SHALL, IN ALL RESPECTS, BE SUBJECT TO AND BE INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS IN EFFECT IN THE STATE OF LOUISIANA, WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES. . . ." [Emphasis in original.] 10 No one alleges that the contractual language is ambiguous. Therefore, it is subject to interpretation as a matter of law. Pitco Prod. Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶12, 63 P.3d 541; Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, ¶9, 706 P.2d 523; Walker v. Telex Corp., 1978 OK 13, ¶7, 583 P.2d 482. 11 Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶5, 925 P.2d 546; Jackson v. Williams, 1985 OK 103, ¶9, 714 P.2d 1017. 12 Brown v. Oklahoma Secondary School Activities, 2005 OK 88, ¶11, 125 P.3d 1219; Johnson v. Ward, 1975 OK 129, ¶42, 541 P.2d 182; Bartlesville v. Ambler, 1971 OK 154, ¶24, 499 P.2d 433. 13 Matter of BTW, 2008 OK 80, ¶20, 195 P.3d 896; Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d 890; Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶12, 27 P.3d 477. 14 Sharp v. 251st Street Landfill, Inc., see note 11, supra; Jackson v. Williams, see note 11, supra; Public Serv. Co. of Oklahoma v. Home Builders Ass'n of Realtors, Inc., 1976 OK 120, ¶5, 554 P.2d 1181. 15 Sharp v. 251st St. Landfill, Inc., see note 11, supra; Jackson v. Williams, see note 11, supra; Amoco Prod. Co. v. Lindley, 1980 OK 6, ¶50, 609 P.2d 733. 16 Daffin v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, ¶7, 251 P.3d 741; House of Realty v. City of Midwest City, 2004 OK 97, 109 P.3d 314 citing Sharp v. 251st St. Landfill, Inc., see note 11, supra. 17 Oklahoma Oncology & Hematology v. US Oncology, Inc., see note 22, infra; Rogers v. Dell Computer Corp., see note 22, infra. 18 Oliver v. Omnicare, Inc., see note 22, infra. 19 The Oklahoma Uniform Arbitration Act, codified at 15 O.S. 2001 §§801, et seq., was recodified at 12 O.S. Supp. 2006, §§1851, et seq., effective January 1, 2006. 2005 Okla. Sess. Laws, ch. 364. 20 Among the cases discussed are three Supreme Court cases on which the employers rely: Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006); and Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984). Prima Paint held that a federal court was free to decide issues relating to the making and performance of an arbitration agreement, but matters concerning the making of the contract containing the arbitration agreement were for the arbitrator. Buckeye reaffirmed these principals. Southland held that the Federal Act withdrew from the states the power to require a judicial forum for the resolution of disputes which the contracting parties agreed to resolve by arbitration. 21 We acknowledged in Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P.3d 16, that the United States Supreme Court had determined that the Federal Arbitration Act preempted and displaced state anti-arbitration statutes. Nevertheless, relying on the well established principle in Oklahoma law that where two statutes address the same subject, one specific and one general, the specific will govern over the general, we held that the specific statute in the Nursing Home Care Act addressing the right to commence an action and to have a jury trial would govern over the more general statute favoring arbitration. Here, we are presented with similar circumstances to those encountered in Bruner, this note, supra. The Oklahoma Legislature has enacted a specific statute addressing non-competition agreements. Title 15 O.S. 2001 §219A, see note 2, supra, addresses the question of the validity of the covenant at issue. Here, as in Bruner, this note, supra, the more specific statute, 15 O.S. 2001 §219A, see note 2, supra, addressing the validity of covenants not to compete, must govern over the more general statute favoring arbitration. 22 See, also, Oklahoma Oncology & Hematology v. US Oncology, Inc., 2007 OK 12, ¶19, 160 P.3d 936 [The existence of valid, enforceable agreements to arbitrate is a question of law to be reviewed by this Court de novo.]; Rogers v. Dell Computer Corp., 2005 OK 51, ¶14, 138 P.3d 826 [Acknowledging that, under the Federal Arbitration Act, when an arbitration provision affects interstate commerce, the question of the contract's validity as a whole must be submitted to the arbitrator. Nevertheless, even though we were prohibited by federal law from examining the validity of the contract as a whole, we were not constrained from treating the contract as valid and analyzing the arbitration provision.]; Oliver v. Omnicare, Inc., 2004 OK CIV APP 93, ¶5, 103 P.3d 626 [The question of whether a covenant not to compete or non-competition provision is contrary to public policy is a question of law for the court.]; Loewen Group Acquisition Corp. v. Matthews, 2000 OK CIV APP 109, ¶13, 12 P.3d 977 [To the same effect.]. 23 A void contract is one that is illegal or contrary to public policy. Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶7, 983 P.2d 1016; Maryland Casualty Co. v. De Armon, 1937 OK 45, ¶0, 64 P.2d 719. A contract made in violation of a statute is void. Kincaid v. Black Angus Motel, Inc., this note, supra; Missouri Fidelity & Casualty Co. v. Scott & Scott, 1918 OK 658, ¶0, 178 P. 122. 24 Title 15 O.S. 2001 §217 providing: "Every contract by which any one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by Sections 218 and 219 of this title, or otherwise than as provided by Section 2 of this act, is to that extent void." 25 We take judicial notice of applicable statutory provisions pursuant to 12 O.S. 2001 §2201(A) providing: "Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States." See also, Matter of McNeely, 1987 OK 19, ¶1, 734 P.2d 1294. 2626In the employees' brief filed on October 28, 2011, they maintain the same position on 12 O.S. Supp. 2006 §219A, see note , as this Court takes today. In Nitro-Lift's brief of October 31st, it continued to assert that the statutory provision was not for this Court to consider, but rather only for the arbitrator's application. 27 White v. Lim, 2009 OK 79, ¶12, 224 P.3d 679; Head v. McCracken, 2004 OK 84, ¶13, 102 P.3d 670; Balfour v. Nelson, 1994 OK 149, ¶8, 890 P.2d 916, 39 A.L.R.5th 935. 28 Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882; McSorley v. Hertz Corp., 1994 OK 120, ¶6, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶8, 832 P.2d 834. 29 Haney v. State, 1993 OK 41, ¶5, 850 P.2d 1087; Public Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶8, 842 P.2d 750. 30 Minie v. Hudson, see note 37, supra; Fuller v. Odom, 1987 OK 64, ¶4, 741 P.2d 449; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132. 31 Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995); Wilson v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1979 OK 62, ¶5, 594 P.2d 1210. 32 Haggard v. Haggard, 1998 OK 124, ¶1, 975 P.2d 439; Price v. Southwestern Bell Tel. Co., 1991 OK 50, ¶7, 812 P.2d 1355. 33 State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824; Matter of Estate of Flowers, 1993 OK 19, ¶11, 848 P.2d 1146. 34 White v. Lim, see note 27, supra; Rout v. Crescent Public Works Auth., 1994 OK 85, ¶10, 878 P.2d 1045. 35 The Legislature defines Oklahoma's public policy through its statutory enactments. See, State ex rel. Henricksen v. State ex rel. Corp. Comm'n, 2001 OK 89, ¶13, 37 P.3d 835; Todd v. Frank's Tong Serv., Inc., 1989 OK 121, ¶12, 784 P.2d 47; Mobbs v. City of Lehigh, 1982 OK 149, ¶16, 655 P.2d 547, 31 A.L.R. 4th 1. 36 Title 15 O.S. 2001 §219A, see note 2, supra. 37 Generally, the use of "shall" signifies a command. City of Midwest City v. House of Realty, Inc., 2008 OK 28, fn. 5, 198 P.3d 886; Zeier v. Zimmer, Inc., 2006 OK 98, ¶7, 152 P.3d 861; Cox v. State ex rel. Oklahoma Dept. of Human Servs., 2004 OK 17, ¶21, 87 P.3d 607, cert. denied, ___ U.S. ___, 129 S. Ct. 2434, 174 L. Ed. 2d 228 (2009). Nevertheless, there may be times when the term is permissive in nature. City of Midwest City v. House of Realty, Inc., this note, supra; Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶9, 619 P.3d 869. 38 JPMorgan Chase Bank v. Specialty Restaurants, Inc., 2010 OK 65, ¶16, 243 P.3d 8; State ex rel. Porter v. Ferrell, 1998 OK 41, ¶9, 959 P.2d 576. 39 Scanline Medical, LLC v. Brooks, see note 42, infra. 40 Characterizing an established customer as one which the purchasers of a business would anticipate would continue to patronize the enterprise. See, Bessemer Trust Co. v. Branin, 618 F.3d 76 (2nd Cir. 2010); Rice v. Hulsey, 829 N.E.2d 87 (Ind.App. 2005); Delta Resources, Inc. v. Harkin, 118 A.D.2d 133, 506 NY.S.2d 695 (1986). 41 In Key Temporary Personnel, Inc. v. Cox, 1994 OK CIV APP 123, 884 P.2d 1213, the Court of Civil Appeals determined that the modification of a contract to limit "clients" to "clients who remain Key clients" was not a substantial modification of the non-competition agreement. Nevertheless, in doing so, it differentiated the agreement under consideration from one in which other major modifications might be required. 42 Bayly, Martin & Fay, Inc. v. Pickard, 1989 OK 122, ¶14, 780 P.2d 1168; Scanline Medical, LLC v. Brooks, 2011 OK CIV APP 88, ¶32, 259 P.3d 911. 43 Bayly, Martin & Fay, Inc. v. Pickard, see note 42, supra. See also, J. Boatman, "Contract Law: As Clear as Mud: The Demise of the Covenant not to Compete in Oklahoma," 2002 Okla.L.Rev. 491 (2002). 44 This is not a situation where all the ills of the covenant not to compete may be cured by striking offending sections. See, Cardiovascular Surgical Specialists Corp. v. Mammana, 2002 OK 27, 61 P.3d 210. 45 Keating v. Edmondson, see note 28, infra. See also, State ex rel. Cartwright v. Dunbar, 1980 OK 15, ¶8, 618 P.2d 900; Tate v. Logan, 1961 OK 136, ¶0, 362 P.2d 670. 46 Spencer v. Oklahoma Gas & Elec. Co., see note 13, supra; Tibbets v. Sight 'n Sound Appliance Ctrs., 2003 OK 72, ¶3, 77 P.3d 1042; Finnel v. Seismic, 2003 OK 35, ¶8, 67 P.3d 339; Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶32, 932 P.2d 1091.

53cc12bb-efcb-43f6-8ad5-481469da9fad

In re Adoption of Baby Boy K.B.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ADOPTION OF BABY BOY K.B.2011 OK 94Case Number: 109333Decided: 11/01/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. In the Matter of the Adoption of Baby Boy K.B., a Minor Child. M.B. and V.B., [Prospective] Adoptive Parents,andBaby Boy K.B., Appellants,v.T.R., Putative Father, Appellee. APPEAL FROM ELLIS COUNTY DISTRICT COURT ¶0 Prospective Adoptive Parents and Baby Boy K.B. sought review of the district court's decision, Hon. F. "Pat" VerSteeg, to deny prospective adoptive parents' motion to terminate biological father's parental rights and petition for adoption. District court also held that physical custody of Baby Boy K.B. must be returned to the biological father. AFFIRMED AND REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. Susan Meinders, Meinders & Meinders, PC, Woodward, Harvey D. Ellis, Crowe & Dunlevy, PC, Oklahoma City, Melanie W. Rughani, Crowe & Dunlevy, PC, Oklahoma City, for Appellants M.B. and V.B.Carelyn S. Talley, Foard & Talley, PLLC, Woodward, for Appellant Baby Boy K.B.Ryan Meacham, Randolph S. Meacham, PC, Clinton, Appellee T.R. COLBERT, V.C.J. ¶1 The question presented is whether K.B. is eligible for adoption - more specifically, whether K.B. is eligible for adoption without the consent of his biological father. This Court holds the trial court did not abuse its discretion by holding that K.B. is not eligible for adoption because K.B.'s biological father exercised his parental rights regarding K.B., including contributing to the support of the biological mother during pregnancy. I. BACKGROUND AND PROCEDURAL HISTORY ¶2 T.R., Putative father1 of K.B., and J.B., biological mother of K.B., had a physical relationship for several months despite the fact that J.B. was married to another man. J.B. and her husband were having marital problems during the course of her relationship with T.R. During the majority of the affair, J.B.'s husband was working out of town for months at a time. K.B. was born on July 11, 2010. It was determined by genetic testing that T.R. was the biological father of K.B. ¶3 After K.B.'s birth, J.B. and her husband relinquished their parental rights and consented to K.B.'s adoption. J.B. selected M.B. and V.B. as the prospective adoptive parents. K.B. went home from the hospital with the prospective adoptive parents. Shortly after K.B. was born, T.R. saw J.B. at the local grocery store. It was then that he learned that J.B. had given birth and that K.B. was to be adopted. T.R. contacted an attorney and filed a motion for determination of paternity in Ellis County. T.R.'s paternity was established by genetic testing. ¶4 On October 21, 2010, the parties appeared before Judge VerSteeg and stipulated that T.R. was the natural father of K.B. The court then heard arguments regarding placement of K.B. with T.R. as the child's natural father. Judge VerSteeg denied T.R.'s request for custody at that time. The court did award T.R. visitation until the matter regarding the termination of his parental rights could be decided. ¶5 On March 24, 2011, a hearing regarding adoptive parents' motion to terminate the natural father's parental rights was held. At the conclusion of those proceedings the judge held that T.R. clearly exercised his paternal rights and that he made monetary contributions to the natural mother during her pregnancy. The court then found that T.R. was entitled to custody of K.B., but allowed M.B. and V.B. visitation until the next scheduled hearing. The record does not reflect that another hearing ever occurred. ¶6 In an order on April 4, 2011, the trial court denied the adoptive parents' petition for adoption. Adoptive parents appealed that decision and this Court granted their motion to retain. II. STANDARD OF REVIEW ¶7 "An abuse of discretion occurs when a trial court exercises its discretion 'to an end or purpose not justified by, and clearly against, reason and evidence. It is discretion employed on untenable grounds or for untenable reasons, or a discretionary act which is manifestly unreasonable.'" State v. Vaughn, 2000 OK 63, ¶ 8, 11 P.3d 211, 214 (quoting Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194). "In cases where abuse of discretion is raised, the discretionary act will be reviewed and if abuse is involved, the abuse will be corrected." Broadwater v. Courtney, 1991 OK 39, ¶ 7, 809 P.2d 1310, 1312. III. ANALYSIS ¶8 "The importance of the right to consent to an adoption has been recognized as an important right in and of itself. The law presumes that consent of a child's natural parents is necessary before an adoption may be effected." Steltzlen v. Fritz, 2006 OK 20, ¶ 12, 134 P.3d 141, 144. Parents have a right to raise their own children. This right is fundamental and protected by the United States and Oklahoma constitutions. In re T.D., 2001 OK CIV APP 92, ¶ 14, 28 P.3d 1163, 1167 (citation omitted). However, the United States Supreme Court and this Court have found that the rights of an unwed parent can be different than the rights of parents that are married. See Lehr v. Robertson, 463 U.S. 248 (1983). If for any reason the child's parents are unable to raise and care for the child, adoption is a viable alternative. Parental consent is required in all adoptions. However, consent of only one parent and not the other is acceptable in certain situations. In In re Baby Boy W., 1999 OK 74, 988 P.2d 1270, neither the biological mother nor the adoption agency notified the biological father that he had a child. Instead, the biological mother made a false statement in the district court regarding the identity of the father and/or his whereabouts. Consequently, the biological father never had the opportunity to exercise his parental rights towards the child. The father did not find out he fathered a child until he was served by the adoption agency with notice of the hearing to terminate his parental rights - more than five months after the baby's birth. The district court entered a judgment in favor of the biological father and the adoption agency appealed. This Court affirmed the trial court's judgment, finding that the father was not given proper notice and opportunity to exercise his parental rights. A. A minor may be adopted when there has been filed written consent to adoption or a permanent relinquishment for adoption executed by: . . . . 2) One parent of the minor, alone, if:a) the other parent is dead,b) the parental rights of the other parent have been terminated, or c) the consent of the other parent is otherwise not required pursuant to section 7505-4.2 of this title . . .. Okla. Stat. tit. 10, § 7503-2.1(A) (2001). ¶9 If the parents are not married, the rights and responsibilities of the biological father are not automatic. He must take certain actions under the statute to exercise his rights before he can seek protection of his rights under the law. "[T]he married father has legal rights as father from the outset, while the unmarried father does not have automatic rights as father, but must acquire such rights through his conduct." Adoption of Baby Girl M, 1997 OK CIV APP 33, ¶ 6, 942 P.2d 235, 239. C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if: 1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. . .. Okla. Stat. tit. 10, § 7505-4.2(C)(1) (2001). How much support qualifies as "the extent of his financial ability" is "fact driven, to be determined by the trier of fact in the first instance, and affirmed by the appellate courts if not against the clear weight of the evidence." Baby Girl M, 1997 OK CIV APP 33, ¶ 9, 942 P.2d at 240. ¶10 As the parties seeking adoption without consent, M.B. and V.B. bear the burden of showing why consent is not needed. Steltzlen, 2006 OK 20, ¶ 12, 134 P.3d at 144. "The standard of proof necessary to establish any of the grounds to permit adoption without consent, or for termination of parental rights is clear and convincing evidence." Id. M.B. and V.B. failed to meet their burden of proof. ¶11 The record demonstrates that upon discovering K.B.'s birth, T.R. took steps to gain legal and physical custody of the baby. On July 15, 2010, T.R. saw J.B. in the local grocery store and noticed she was no longer pregnant. When he asked about the baby, J.B. informed him that she had given birth on July 11, 2010, and had given K.B. up for adoption. T.R. immediately contacted an attorney and filed a paternity action within a matter of days. ¶12 When the court awarded T.R. visitation, he seized every opportunity to spend time with his child.2 The trial court found that T.R. manifested a clear intent and complete appreciation of his parental role, including the intent to exercise his role in his child's life. ¶13 The prospective adoptive parents argued that T.R. did not contribute to the support of the mother to the full extent of his financial abilities during her pregnancy. The trial court disagreed. The clause in § [7505-4.2(C)(1)], "including, [but not limited to], failure to contribute to the support of the mother [of the child] to the extent of his financial ability during her term of pregnancy," must modify each preceding clause and therefore requires acknowledgment of paternity, legal action to establish same, or exercise of parental rights and duties be accompanied by support of the mother during pregnancy. Baby Girl M, 1997 OK CIV APP 33, ¶ 13, 942 P.2d at 240. The record contains clear and convincing evidence that T.R. gave monetary support and exercised his parental rights by giving mother money while she was pregnant and filing a paternity action after K.B.'s birth. How much support is sufficient is a question of fact to be determined by the trier of fact. Id. IV. CONCLUSION ¶14 K.B. is not eligible for adoption without the consent of his biological father. T.R. exercised his parental rights to his child showing that "he grasps [the] opportunity and accepts some measure of responsibility for the child's future." Lehr, 463 U.S. 248, 262. Plus, he provided financial support to the biological mother during her pregnancy. The sufficiency of the support is a fact to be determined by the trial court. Steltzlen, 2006 OK 20, ¶ 18, 134 P.3d at 146. T.R.'s parental rights remain intact. The record shows that the trial court set a best interest hearing pursuant to Title 10, section 7505-6.4, for April 21, 2011, but that hearing never occurred. This cause is remanded to the trial court for a hearing, as required by statute.3 AFFIRMED and REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. ALL JUSTICES CONCUR. FOOTNOTES 1 As used in the Oklahoma Adoption code:"Putative father" means the father of a minor born out of wedlock or a minor whose mother was married to another person at the time of the birth of the minor or within the ten (10) months prior to the birth of the minor and includes, but is not limited to, a man who has acknowledged or claims paternity of a minor, a man named by the mother of the minor to be the father of the minor, or any man who is alleged to have engaged in sexual intercourse with a woman during a possible time of conception. Okla Stat. tit. 10, § 7501-1.3(12) (Supp. 2002). 2 The record shows T.R. showed up every visitation day to pick up the baby, except for one day. On that occasion the baby was ill. All parties believed it to be in the child's best interest to forgo the visit and permit K.B. to stay at M.B. and V.B.'s home. 3 The relevant statute provides: A. If the court denies a petition for adoption or vacates a decree of adoption, it shall dismiss the proceeding. If no preexisting custody order remains in effect, the court shall issue an appropriate order for the legal and physical custody of the minor according to the best interests of the minor, if the court has jurisdiction to issue a custody order. B. 1. If the court has jurisdiction to issue a custody order, the court shall schedule a separate hearing to determine custody of the minor. The court shall certify that the petitioner for adoption and each parent of the minor has received notice of the date of the custody hearing at least fifteen (15) days prior to the date of the hearing and that each biological parent who has signed a consent or permanent relinquishment has been served in the same manner as summons is served in civil cases at least fifteen (15) days prior to the date of the hearing. The petitioner for adoption shall be responsible for serving any parent who has not entered an appearance in the adoption proceeding. If the Department of Human Services or any licensed child-placing agency had legal custody at the time the petition was filed, the petitioner shall notify the Department or agency of the date of the custody hearing. 2. Upon motion to intervene, the court shall join any person entitled to notice under this subsection who is not already a party to the proceeding. 3. At the hearing, the court may award custody to the biological mother, the biological father, the biological parents, if they are married, the prospective adoptive parents, or the Department or other licensed child-placing agency if the Department or agency had legal custody of the child at the time that the petition was filed, pursuant to Section 21.1 of this title, in the best interests of the child. 4. The child shall be represented at this hearing pursuant to Section 7505-1.2 of this title. Okla. Stat. tit. 10, § 7505-6.4 (2001).

c3b5c103-1b74-4846-99c9-021347a6dd60

Thompson v. Oklahoma Public Employees Retirement System

oklahoma

Oklahoma Supreme Court

THOMPSON v. STATE ex rel. BD. OF TRUSTEES OF OKLA. PUBLIC EMPLOYEES RETIREMENT SYSTEM2011 OK 89Case Number: 107661; Consol. w/107662Decided: 10/25/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DONALD D. THOMPSON, and PAULA R. THOMPSON, Petitioners/Appellants,v.STATE OF OKLAHOMA, ex rel., BOARD OF TRUSTEES OF THE OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM and THE OKLAHOMA EMPLOYEES RETIREMENT SYSTEM, Respondents/Appellees. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYTHE HONORABLE PATRICIA G. PARRISH, DISTRICT JUDGE ¶0 The petitioners/appellants, Donald D. Thompson and Paula R. Thompson, appeal the decision of the District Court of Oklahoma County, which affirmed an administrative decision from the Board of Trustees of the Oklahoma Public Employees Retirement System, respondents/appellees. After a hearing, the district court determined that Mr. Thompson's state retirement benefits must be forfeited after he was convicted of felonies that violated his oath of office as a district court judge. The district court determined that Mrs. Thompson, Mr. Thompson's wife, did not have standing in the individual administrative proceedings and was not a proper party therein. AFFIRMED. Clark O. Brewster, Robert Nigh, Jr., Marvin G. Lizama, BREWSTER & De ANGELIS, P.L.L.C., Tulsa, Oklahoma; Joe E. White, Jr., Charles Weddle, WHITE & WEDDLE, P.C., Oklahoma City, Oklahoma, for appellants.Marc Edwards, Catherine L. Campbell, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma; Joseph A. Fox, General Counsel Oklahoma Public Employees Retirement System, Oklahoma City, Oklahoma, for appellees. WINCHESTER, J. ¶1 Donald D. Thompson, petitioner/appellant, appeals the forfeiture of his judicial retirement benefits ordered by the Oklahoma Public Employees Retirement System Board of Trustees1 and affirmed by the District Court of Oklahoma County. This Court retained the matter for review. I. FACTS AND PROCEDURE ¶2 On August 18, 2004, Mr. Thompson submitted his Declaration of Intent to Retire, which was approved August 31, 2004. He began receiving his pension benefits. On January 20, 2005, the State of Oklahoma filed charges against him for Indecent Exposure. The trial ended on June 29, 2006, with a guilty verdict returned by the jury on all four counts.2 The charges on which he was convicted occurred while Mr. Thompson was on the bench presiding over contested hearings and jury trials. Court personnel present during those trials testified they saw Mr. Thompson expose himself. ¶3 The prosecuting attorney in the criminal case that resulted in Mr. Thompson's felony convictions notified the Oklahoma Public Employees Retirement System (OPERS) by letter of the felonies. On September 12, 2006, OPERS notified Mr. Thompson in writing that as a result of his conviction his judicial retirement pension benefits must be forfeited. Mr. Thompson requested an administrative hearing to contest the forfeiture. Ultimately, the OPERS Board of Trustees adopted the recommendation of a hearing examiner and on February 19, 2009, entered a final agency order sustaining the forfeiture of Mr. Thompson's retirement benefits. ¶4 In the Board's Findings of Fact, it determined that Mr. Thompson had served as a State Representative from November 20, 1974, through November 19, 1980, with six years of participating service in OPERS. These benefits are not in dispute.3 Mr. Thompson was appointed as District Judge in and for Creek County, Oklahoma, in February of 1982. In 1986, 1990, 1994, 1998 and 2002 he remained in office by election. He had 23 years of participating service in the Uniform Retirement System for Justices and Judges, February 12, 1982, through August 18, 2004. He retired before the expiration of his last term and began to receive his benefits in September of 2004. His gross monthly benefit at the time of his retirement was $7,489.91, and with a cost of living adjustment, his income increased to $7,789.51, effective July 1, 2006. Mr. Thompson's own contributions to URSJJ were not subject to forfeiture. II. BURDEN OF PROOF ¶5 Mr. Thompson asserts that OPERS violated the Oklahoma Administrative Procedures Act when it forced him to forfeit his retirement benefits without proper notice as required by 75 O.S.2001, § 309, nor did he receive an individual proceeding providing him an opportunity to proffer evidence and present witnesses on his behalf as required by 75 O.S.2001, § 310. He further states OPERS' decision on September 12, 2006, to refuse further payment of his retirement benefits was premature, without any supporting evidence, and solely the result of hearsay, conjecture and innuendo. ¶6 The facts reveal that Tom Spencer, the Executive Director of OPERS made the decision to require forfeiture of Mr. Thompson's retirement benefits, and informed him by letter of that action. Mr. Spencer included that if Mr. Thompson was aggrieved by the decision, he had the right to an administrative hearing before the Board of Trustees pursuant to the Administrative Procedures Act, and that the hearing was his exclusive remedy and must be requested in writing within thirty days of the receipt of the letter. This letter was not a final determination of the forfeiture, but served in a similar manner as a notice to show cause. ¶7 A show-cause order is not a binding opinion on the merits in an issue before a court, it is merely the means prescribed by law, in the nature of process, for bringing the party into court to answer certain demands.4 It does not shift the burden of proof, but is merely a method of summary procedure, like a summons.5 A party to a lawsuit may shift the burden of going forward by producing some evidence and the opposing party may introduce evidence to explain the contested matters.6 ¶8 The transcript of Mr. Spencer's testimony reveals he decided to notify Mr. Thompson of the forfeiture after examining the judgment and sentence sent by the district attorney. The district attorney's accompanying letter to Mr. Spencer concluded that the crimes for which Mr. Thompson was convicted occurred while he was presiding as judge over a trial. Mr. Thompson requested a hearing. At that hearing the hearing examiner placed the burden of going forward with the evidence on Mr. Thompson, so he presented his evidence after the hearing examiner already had before him the full record of Mr. Thompson's final felony convictions. ¶9 When Mr. Thompson challenged this procedure of providing notice of forfeiture on appeal, OPERS answered that it must act within the parameters of 51 O.S.2001, § 24.1(A),7 which provides in pertinent part that the attorney responsible for prosecuting the elected state officer shall notify the retirement system in which such officer is enrolled of the forfeiture of such officer's retirement benefits. The wording of the statute appears to place the responsibility on the prosecuting attorney to determine whether there is cause to believe the felony offense violated the officer's oath of office and to notify the retirement system that the officer must forfeit retirement benefits. Pursuant to this statute, the action of informing the state officer that the benefits must be forfeited is merely a perfunctory act of OPERS following its notification by the prosecuting attorney. The prosecuting attorney has identified the offense and made the preliminary conclusion that the officer violated the oath of office. ¶10 After the prosecutor's initial conclusion that forfeiture is indicated and OPERS relays that conclusion to the state officer who is accused of violating the oath of office, that officer is entitled to an individual proceeding, but may still choose not to contest the accusation. If the officer chooses to contest the accusation, an individual proceeding must be held providing an opportunity for the officer to proffer evidence and present witnesses, all pursuant to 75 O.S.2001, § 309. At such hearing the burden is on the accusing party to show the officer has violated his oath of office. ¶11 The hearing examiner expressed his view that the hearing Mr. Thompson requested placed the burden of proof on him concerning whether his conviction violated his oath of office. Determining that a state official has violated his oath of office is an evidentiary matter. Stipe v. State ex rel. Bd. of Trustees of Oklahoma Public Employees Retirement System, 2008 OK 52, ¶ 16, 188 P.3d 120, 124. The burden of proof remains with OPERS to establish facts tending to show that the state officer violated his oath of office during the commission of a felony. In this case, the judgment and sentence in the criminal matter established a prima facie case against Mr. Thompson. A prima facie case is made out of such evidence as in the judgment of the law is sufficient to establish a given fact, and if unrebutted, remains sufficient to uphold a judgment in favor of the issue that it supports. Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306; Glenn Smith Oil v. Sheets, 1985 OK 56, ¶ 9, 704 P.2d 474, 478. A felony conviction for indecent exposure on each of four counts, which acts occurred during four trials in which Mr. Thompson presided as judge, is sufficient to establish OPERS burden of proof that Mr. Thompson's retirement benefits are subject to forfeiture pursuant to the statute. ¶12 With a prima facie case established, the hearing examiner properly placed the responsibility on Mr. Thompson to proceed with the evidence to explain or contradict that his felony convictions did not violate his oath of office. The examiner mistakenly called this the "burden of proof," but it was actually the burden of proceeding with the evidence. Mr. Thompson presented as his defense that the felonies he committed did not disrupt the trials. While that is an attempt to rebut the prima facie case, it is not a successful defense. ¶13 Mr. Thompson received his requested hearing before a hearing examiner, and cannot claim that he failed to receive advance notice and an opportunity to fully present his case. The hearing examiner informed both parties near the conclusion of the hearing that: "[O]ne of my main purposes is to make sure you get all your arguments, all your evidence, everything you want me to consider, everything you want the board to consider, everything you want an appellate court to consider because all that is based on this record, so I'm going to do my best to make sure that you get everything before anybody that's going to see it that you can."8 ¶14 The uncontested facts revealed multiple felonies committed while Mr. Thompson presided over jury trials, and the offended parties included court personnel. Court reporters observed the felonious exposure of Mr. Thompson's private parts, and testified to the fact during the criminal trial. That trial resulted in conviction of felonies. Those felonies violated Mr. Thompson's oath of office. This uncontested evidence presented by OPERS is sufficient to support forfeiture. III. RIGHTS OF BENEFICIARY ¶15 Mr. Thompson's wife, Paula R. Thompson, repeatedly sought participation in the administrative proceedings regarding forfeiture of Mr. Thompson's retirement benefits, and at each step was denied participation. She claims her due process rights were denied. She further claims that she has a vested property right because the pension benefits are an asset of her marriage to Mr. Thompson, and she asserts that all of the vested pension benefits were accrued during their marriage. Mrs. Thompson supports her argument by citing divorce cases. Those holdings are not applicable to the essential issue now before us, and that is whether a wife, such as Mrs. Thompson who was married to Mr. Thompson at the time of the forfeiture hearing, has a vested right to her spouse's retirement benefits when those benefits have been forfeited by operation of law. ¶16 OPERS argues that she is a surviving spouse beneficiary to one who has no current rights to his pension benefits. Determining whether an individual has been denied procedural due process is a two-step inquiry. First, we determine whether the individual possesses a protected interest to which due process protection applies, and if so, whether the individual was afforded an appropriate level of process. In re A.M., 2000 OK 82, ¶ 7, 13 P.3d 484, 487. ¶17 The statutes governing the Uniform Retirement System for Justices and Judges are found within title 20, Chapter 16. Section 1102C provides options for payment of benefits to a spouse. Subsection A reveals those benefits are available to a spouse or surviving spouse. In Woods v. City of Lawton, 1992 OK 167, 845 P.2d 880, the Court held that membership in any pension or retirement system of the state, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, with the rights being defined by the limits of the contract, which may provide that vesting is subject to contingencies that can cause a forfeiture. Woods, 1992 OK 167, ¶ 12, 845 P.2d at 883. Accordingly, contingencies provided by statute, more specifically, § 24.1 of Title 51, can provide that a violation of a state officer's oath of office results in a forfeiture of retirement benefits, in which case the officer would no longer have a vested interest in those benefits. If the officer has no vested interest in the benefits, neither does the spouse. Because this spouse has no protected interest, due process protection does not apply. The agency and the district court did not err in denying Mrs. Thompson's participation as a party in the forfeiture proceedings against Mr. Thompson. IV. FORFEITURE OF BENEFITS OF OFFICE ¶18 Mr. Thompson asserts that strict construction of the forfeiture statute requires that it must apply only to his oath of office filed January 15, 2003, the last oath of office he took, so that he would forfeit only the retirement benefits from his last term in his judicial office. OPERS answers that the statute, 51 O.S.2001, § 24.1, does not support this position. ¶19 This state has a strong policy against forfeitures, and will neither search for a construction that will bring about a forfeiture, nor adopt a meaning that would produce such an effect unless the language of the statute under consideration clearly demonstrates the legislature intended that a forfeiture take place. Hendrick v. Walters, 1993 OK 162, ¶ 7, 865 P.2d 1238-1239. The 1998 version of § 24.19 provided in pertinent part that if an elected official during the term he is elected is found guilty of a felony, he shall be automatically suspended from office, and upon final conviction shall vacate the office. If the felony violates his oath of office he shall forfeit "all the benefits of said office" including retirement benefits provided by law. The forfeiture is limited to the benefits accruing to the officer after 1981.10 Mr. Thompson argues that the wording of the statute restricts the forfeiture to his last term in office. We cannot agree with this construction of the statute. The purpose of §24.1(A) is to ensure that public officials who commit serious criminal offenses, particularly those which violate their oath of office, lose their rights to serve further and to the benefits of office. Nida v. OPERS, 204 OK CIV APP 85, ¶ 15, 99 P.3d 1224, 1227. ¶20 The statute covers elected state and county officials and state employees. If this Court accepted Mr. Thompson's construction of the statute, officials who were elected to multiple terms in office would be in a superior position to state employees who are hired and worked for exactly the same number of years. Under his suggested construction, Mr. Thompson would lose less than four years of benefits after serving twenty-two years as a district judge, while an employee of the state who was employed twenty-two years and commits a felony that violates the oath of office taken when the employment commenced, would lose a total of twenty-two years of benefits. We see no reason to believe the legislature intended such a disproportionate penalty between state employees and state officers for violation of their oaths of office. V. ORAL ARGUMENT, ATTORNEY FEES AND COSTS ¶21 In the last two paragraphs of his reply brief, Mr. Thompson requests oral argument, attorney fees and costs. Based on the uncontested facts included in the original record, we see no reason to grant oral argument. Mr. Thompson also requested attorney fees. No argument is made, nor is any statute or case cited to support an award of attorney fees and costs, and this request is denied. AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 The Board of Trustees of the Oklahoma Public Employees Retirement System manages the Uniform Retirement System for Justices and Judges and the State Judicial Retirement Fund. 20 O.S.Supp.2010, § 1108(A). 2 On or between these dates, the individual felonies of indecent exposure were committed: Count 1, May 5, 2003 and June 10, 2003; Count 2, August 21, 2003 and August 26, 2003; Count 3, September 8, 2003 and September 18, 2003, and Count 4, October 14, 2002 and October 25, 2002. 3 The forfeiture clause in title 51, § 24.1 was added by the 1st Extr. Sess., ch. 1, § 3, emerg. eff. September 8, 1981. Although this section has been amended by 1987 Okla.Sess.Laws, ch. 30, § 1, 1998 Okla.Sess.Laws, ch. 419, § 8, and 2009 Okla.Sess.Laws, ch. 77, § 1, this Court in Stipe v. State ex rel. Bd. Of Trustees of OPERS, 2008 OK 52, ¶ 8, 188 P.3d 120, 122-123, and the Court of Civil Appeals, Nida v. OPERS Bd. Of Trustees, 2004 OK CIV APP 85, ¶ 17, 99 P.3d 1224, 1228, has treated the effective date of the forfeiture statute as September 1, 1981, even though each revision includes a similar phrase seeming to except retirement funds vested on the "effective date of this act." The Legislature has made no changes in the wording since Nida, so we may conclude the Legislature has agreed to the 1981 date as the effective date of the act. "[L]egislative silence, when it has authority to speak, may be considered as giving rise to an implication of legislative intent." City of Duncan v. Bingham, 1964 OK 165, ¶ 12, 394 P.2d 456, 460. 4 See Goldstein v. United States, 11 F.2d 593, 594 (5th Cir. 1926) (cert. den. 271 U.S. 668, 46 S. Ct. 483, 70 L.Ed. 1141), Morehouse v. Pacific Hardware & Steel Co., 177 F. 337, 339 (9th Cir. 1910). 5 Chambers v. Blickleford Sales, Inc., 313 F.2d 262, 257 (2nd Cir. 1963). 6 See Chambers. 313 F.2d at 256. 7 The statute has subsequently been amended by 2009 Okla. Sess. Laws, ch. 77, § 1. The above language cited is now found in title 51 O.S.Supp.2010, § 24.1(J). 8 Original Record at 260. 9 A. Any elected or appointed state or county officer or employee who, during the term for which he or she was elected or appointed, is, or has been, found guilty by a trial court of a felony in a state or federal court of competent jurisdiction shall be automatically suspended from said office or employment. The Governor shall appoint an interim successor to serve during the period of suspension of any county commissioner or any state officer other than a member of the State Legislature. A vacancy created by the suspension of a member of the State Legislature shall be filled as provided in Section 20 of Article V of the Oklahoma Constitution. A vacancy created by the suspension of a county officer other than a county commissioner shall be filled as provided by Section 10 of this title. In the event any elected or appointed state or county officer or employee who, during the term for which he or she was elected or appointed, pleads guilty or nolo contendere to a felony or any offense involving a violation of his or her official oath in a state or federal court of competent jurisdiction, he or she shall, immediately upon the entry of said plea, forfeit said office or employment. Any such officer or employee upon final conviction of, or pleading guilty or nolo contendere to, a felony in a state or federal court of competent jurisdiction shall vacate such office or employment and if such felony or other offense violates his oath of office shall forfeit all benefits of said office or employment, including, but not limited to, retirement benefits provided by law, however, the forfeiture of retirement benefits shall not occur if any such officer or employee received a deferred sentence, but retirement benefits shall not commence prior to completion of the deferred sentence; provided however, that such forfeiture of retirement benefits shall not include such officer's or employee's contributions to the retirement system or retirement benefits that are vested on the effective date of this act. Any claims for payment of salary or wages, or any claims for payment of any other benefits, to any such officer or employee suspended from or forfeiting his or her office or employment shall be rejected by the proper authority. Such suspension or forfeiture shall continue until such time as said conviction or guilty plea is reversed by the highest appellate court to which said officer or employee may appeal. The attorney responsible for prosecuting such elected or appointed state or county officers or employees shall notify the retirement system in which such officer or employee is enrolled of the forfeiture of such officer's or employee's retirement benefits. 10 See Stipe v. State ex rel. Bd. Of Trustees of OPERS, 2008 OK 52, ¶ 8, 188 P.3d 120, 122-123; and Nida v. OPERS Bd. Of Trustees, 2004 OK CIV APP 85, ¶ 17, 99 P.3d 1224, 1228.

9c91fd08-4da7-41ad-8d8f-a0b822ed9a17

In re Estate of Dicksion

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ESTATE OF DICKSION2011 OK 96Case Number: 107295Decided: 11/15/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE ESTATE OF VALATUS MERRAL DICKSION THOMAS POWELL and KOLLEEN M. MAILLOUX, Appellants/Counter-Appellees,v.ARCHIE DICKSION, Appellee/Counter-Appellant. CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION IV Honorable John A. Blake, Trial Judge ¶0 The appellee/counter-appellant, Archie Dicksion (Dicksion/personal representative) filed a petition for the probate of the holographic will of his brother in the District Court of Garvin County, Oklahoma. Subsequently, Thomas Powell (Powell/son) asserted that he was a pretermitted heir of the deceased. With the family's cooperation, DNA genetic testing was conducted and the tests determined that Powell was the son of the decedent. The trial court determined that Powell was an unintentionally omitted child and entitled to his statutory share of the estate. Powell and his half-sister, the decedent's daughter, also challenged the admittance of the holographic will to probate and the personal representative's appointment. The motion for new trial was denied. Both Powell and the personal representative appealed and the Court of Civil Appeals reversed and remanded. We granted certiorari to address the application of paternity testing to intestate and probate proceedings. We hold that: 1) under the facts presented, the objections to admission of the holographic will were not untimely; 2) the paternity statute, 84 O.S. 2001 §215, applies to intestate and probate proceedings; and 3) 58 O.S. 2001 §122 prohibits the appointment of a business partner as personal representative only when the proceedings are intestate or when the business partner is not named personal representative in a will. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;CAUSE AFFIRMED IN PART/REVERSED IN PART AND REMANDED. Yasodhara M. Means, Norman, Oklahoma, for Appellants/Counter-Appellees.James W. Carlton, Jr., Brett Agee, Pauls Valley, Oklahoma, for Appellee/Counter-Appellant.Cameron L. Miller, Denton, Texas, Pro se.Jeanie Mendes, Wailuki, Hawaii, Interested Party. KAUGER, J., ¶1 The three dispositive issues presented by this appeal and counter-appeal are whether: 1) the objection to admission of the holographic will was timely;1 2) the paternity statute, 84 O.S. 2001 §215,2 applies to intestate and probate proceedings; and 3) 58 O.S. 2001 §1223 prohibits the appointment of a business partner as personal representative when the will does not make any provisions for such an appointment. We hold that: 1) under the facts presented, the objection to the admission of the holographic will was not untimely; 2) 84 O.S. 2001 §215 applies to intestate and probate proceedings; and 3) 58 O.S. 2001 §122 prohibits the appointment of a business partner as personal representative only when the proceedings are intestate or when the business partner is not named personal representative in a will. FACTS ¶2 On December 20, 2006, the appellee/counter-appellant, Archie M. Dicksion, (Dicksion/personal representative) filed a petition for the probate of the holographic will of his brother, Valatus Merral Dicksion, in the District Court of Garvin County, Oklahoma. The will was written in ink on four pages of heavily stained notebook paper. The provision naming his daughter as administrator of the estate was marked out. The will was partially dated and purportedly signed by the decedent.4 ¶3 On January 18, 2007, the will was admitted to probate and Dicksion was appointed personal representative of his brother's estate. According to the petition for probate, the heirs of the decedent consisted of a deceased wife, Estella G. Dicksion, and two adult daughters, Kolleen Mailloux of Los Angeles, California, and Kelli Laine, of Corona, California (Maillox/Laine). The petition does not mention the decedent's adult son, Thomas Powell of Shreveport, Louisiana (Powell/son). The son was born out of wedlock to Inex Wahlstrom and the decedent in California in 1952 and placed for adoption one year later.5 ¶4 On February 8, 2007, Mailloux, objected to any further proceedings until the proposed sale of certain real property had been appraised and the circumstances surrounding the execution of the alleged holographic will had been fully and fairly litigated. On March 8, 2007, the trial court determined that the real property in question was not an asset of the estate, but rather belonged to Whispering Pines Ranch, L.L.C. as the record owner. Consequently, it determined that it had no jurisdiction over the sale of the real property. On March 9, 2007, the personal representative filed an application to determine heirs, noting that Powell alleged that he was the son of the decedent and entitled to his share of the estate. The application requested that the court make a determination as to whether the son was the legal heir of the deceased. ¶5 On March 29, 2007, Powell filed the application for his share of the estate as an unintentionally omitted child alleging that he was the biological son of the deceased. DNA genetic testing was conducted and the tests determined that Powell was the son of the decedent. On July 3, 2007, at the hearing on Powell's application, the court granted the application finding that Powell was an pretermitted heir and entitled to his statutory share of the estate. ¶6 On December 4, 2007, the personal representative filed a petition for an order allowing a final account of the estate, a determination of heirship, and a petition for final decree of distribution and discharge. On January 10, 2008, the appellants, Powell and Mailloux, filed objections to the final accounting and included a list of concerns regarding the estate and the transfer of various properties from the estate. ¶7 At this stage of the proceeding, several continuances were granted, objections to a final accounting were filed by additional heirs and the heirs of the deceased's widow, and ultimately the trial court added Whispering Pines L.L.C. and the personal representatives as parties to the probate proceeding. Whispering Pines L.L.C., was owned in half by the decedent and his wife and half by the personal representative/brother. The trial court determined that the assets of the company were so intertwined with the estate assets that the company had to be included as a party to the proceedings. ¶8 By November 3, 2008, the objections had been overruled, the final accounting was approved for distribution according to the terms of the will, with the exception of Powell who was awarded his share as an unintentionally omitted heir. The final probate order was filed on December 9, 2008. Two days later, Powell asked for an extension of time and stay of the final accounting so that he could secure a new lawyer. ¶9 On December 29, 2008, Powell filed a motion for new trial pro se challenging the December 9, 2008, order. Subsequently, on January 20, 2008, Powell, through his new lawyer, filed an amended motion for new trial arguing that: 1) the accounting of the assets of the estate was erroneous; 2) the Court had never ruled on the objections to the holographic will; and 3) the personal representative, as a business partner of the decedent should not have been appointed as personal representative. ¶10 On May 26, 2009, the motion for new trial was denied and an order reflecting the ruling was filed on June 8, 2009. On June 11, 2009, the trial court denied the personal representative's oral motion to tax Powell for additional attorney fees incurred by the estate. Instead, it allowed the Powell's attorney fees from his previous lawyer to be paid from Powell's share of the estate. ¶11 Powell appealed the trial court's denial of the new trial motion on July 8, 2009, asserting that the trial court committed reversible error: 1) by admitting the holographic will; 2) by appointing the brother/partner as personal representative; and 3) in its valuation and distribution of the estate. Two days later, the personal representative filed a counter-appeal alleging that the trial court erred when it: 1) determined that Powell was an omitted heir; 2) awarded Powell a portion of the estate; and 3) awarded Powell attorney fees instead of imposing fees against Powell. ¶12 The Court of Civil Appeals reversed and remanded both appeals for further proceedings, determining that trial court erred when it allowed post-death determination of paternity as a basis for inheritance. On September 8, 2010, Powell filed a petition for certiorari and we granted the petition on December 14, 2010. I.¶13 UNDER THE FACTS PRESENTED, THE OBJECTION TO THE ADMISSION OF THE HOLOGRAPHIC WILL WAS NOT UNTIMELY. ¶14 The personal representative argues that no timely objection to the admission of the holographic will was made because the document that the objection was contained in did not conform to the requirements of 58 O.S. 2001 §61.6 The son insists that the objection was timely; but no evidentiary hearing was ever held regarding the will contest or the will's admission. ¶15 We note at the outset that this is not a case in which an unintentionally omitted heir appeared and attempted to contest a will which had already been probated. Had this been the case, 58 O.S. 2001 §2427 which provides that if no person contests a will within 60 days after a will has been admitted, the will is conclusive, would have prevented such a result. Rather, the pretermitted heir in the instant cause has been involved in this proceeding since the will was admitted to probate, and 58 O.S. 2001 §61 8 sets forth the time limits and form of contesting an admitted will to probate. It is true the precise petition provided by §61 was not filed. However, the meaning and effect of an instrument filed in court depends on its contents and substance rather than on the form or title given it by the author.9 The legal effect of any court filed paper depends on its substance rather than its form.10 ¶16 In one of the Court's earliest cases, Ginn v. Knight, 1924 OK 806 ¶4, 232 P. 936, an appeal was filed and the appellee moved to dismiss the appeal because the pleading which was the subject of the appeal was titled "motion of petition," when it was actually an application. However, the Court noted that the instrument was treated as a motion by the trial court throughout the proceedings. The Court held that "the nature of a pleading is not determined by the title given it by pleader, but by the subject-matter thereof." ¶17 Here, the document containing the objection was titled "Objection to Application for Sale of Real Estate" which was filed less than 90 days after the will was admitted. However, the objection was premised on the belief that the details and circumstances surrounding the execution of the will were such that the sale of estate property should be stayed until a further examination by the court could be made.11 A majority of the objection references the appellant's desire for a full examination of the will. The objection was not merely to the sale of estate property, but rather the sale of that property based on a potentially invalid will. Although the document was not titled as a petition to contest to the validity of the will and its admission to probate, the subject-matter shows that it was such and should have been treated accordingly. Nevertheless, to be clear, we reiterate that had the pretermitted heir attempted to claim an interest in the estate after probate been concluded the objection would have been untimely and the probate conclusive. II.¶18 TITLE 84 O.S. 2001 §215 APPLIES TO INTESTATE AND PROBATE PROCEEDINGS. ¶19 The son argues that the probate court properly ordered and considered the DNA paternity test to determine that he was an heir. He also insists that the personal representative's challenge to the issue is waived because the personal representative agreed to and consented to the test. The personal representative argues that the probate court could not consider paternity testing in a probate proceeding and even if it could, the son did not establish that he was an heir entitled to inherit from the decedent. ¶20 Because we have determined that the challenge to the holographic will was not untimely, it is possible on remand that the will may be determined to be invalid and inadmissible. If this is the case, the matter will proceed under the intestate statutes. Consequently, we take this opportunity to address DNA testing as it applies to both intestate or probate proceedings. ¶21 The paternity of children born out of wedlock has been of concern since before statehood. Title 84 O.S. 1910 §215 was codified in 1910 and it remained the same as the territorial version of the law from 1890.12 The statute addressed inheritance by and from illegitimate children and provided: Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father after such marriage, acknowledges him as his child, or adopts him into his family, in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, interstate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. ¶22 In 1940, the Court in Burns v. Lawson, 1940 OK 459, 107 P.2d 555, addressed the sufficiency of proof as required under this statute. In Burns, the alleged heir commenced an action to be declared the sole heir of Lawson. A written acknowledgment of paternity was alleged to have existed, but neither copy of the instrument nor any witness who saw Lawson sign it was produced. The trial court submitted the question to the jury as to whether Lawson signed, in the presence of a competent witness, an acknowledgment in writing that he was the father. The unanimous verdict was no, and it was affirmed on appeal. ¶23 Section 215 remained unaltered for over 60 years until 1977 when the Legislature amended, 84 O.S. Supp. 1977 §215 to provide: For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. For all purposes, the issue of all marriages null in law, or dissolved by divorce, are deemed to have been born in wedlock. ¶24 In the Matter of Estate of King, 1990 OK 138, 837 P.2d 463 we addressed the constitutionality of this version of the statute. The father in King was deceased and his will had been presented to probate when his alleged child filed an action for a determination of heirship. After reviewing several United States Supreme Court decisions on sister states' statutes, we held that §215 was constitutional.13 ¶25 The King Court discussed the burden of proof necessary for the child born out of wedlock to inherit by intestate succession. In addressing the burden of proof, the Court noted that one method for a child born out of wedlock to inherit from his father was if "there was a judicial determination of paternity before the death of the father." The statute does not have this requirement written into it -- nor has it ever had such language. The Court quoted the statute as having required a paternity determination before the death of the father when no such requirement has ever existed. ¶26 In In the Matter of Estate of Gertrude Jo Geller, 1999 OK CIV APP 45, 980 P.2d 665, the Court of Civil Appeals was presented with the argument that §215(d) would authorize a paternity proceeding against the father despite the fact that the father was deceased. The Court of Civil Appeals noted that: [T]he court in King stated that section 215(d) requires 'a judicial determination of paternity before the death of the father.' 1990 OK 138 at ¶12, 837 P.2d at 467 (emphasis added). We cannot agree with White's contention that the court's language is dicta. The Geller Court went on to hold that §215 "does not appear to contemplate post-death genetic testing, and the Supreme Court has explicitly stated that it does not." ¶27 Here, the Court of Civil Appeals also expressly relied on King's erroneous language which added the requirement that paternity be determined prior to the father's death. The statute does not have such a requirement written into it and to the extent King and Geller suggests that it does -- they should be overruled and are hereby overruled. ¶28 More than 30 years has passed since 1977, and §215 has not been updated. In the meantime the use of DNA testing has evolved exponentially. The Uniform Parentage Act, 10 O.S. Supp. 2006 §§ 7700-101 et seq., became effective in Oklahoma in 2006. The Act, expressly applies to parental determinations in this state. It states that all courts shall apply the law to determine parentage -- neither intestate nor probate proceedings are excluded from this requirement.14 Under the Act: 1) all children, whether born to parents who are married or not are treated the same;15 2) paternity testing applies for all purposes of establishing a parent-child relationship;16 and 3) paternity testing expressly includes DNA testing of deceased individuals.17 It is completely illogical to allow posthumous genetic DNA testing under the Uniform Parentage Act, but not to allow it in intestate and probate proceeding when the statute expressly allows an heir to prove heirship via paternity proceedings. ¶29 Section 215 merely requires a judicial determination of paternity. It does not limit that determination to paternity proceedings in which a parent is seeking child support or to any other proceeding in which paternity may be asserted. Rather, §215 is part of the probate code. The Legislature, when it updated §215 in 1977, must have known by the late 1970's that paternity testing had advanced since 1910, and would continue to advance. Clearly, the change in the statute was broad enough to encompass this evolution of paternity testing. Even if one were not inclined to overrule In the Matter of Estate of King, 1990 OK 138, 837 P.2d 463 and In the Matter of Estate of Gertrude Jo Geller, 1999 OK CIV APP 45, 980 P.2d 665, the enactment of the 2006 Uniform Parentage Act has done so. ¶30 Courts have embraced DNA testing to determine heirship.18 Here, Powell alleged that he was the natural son of the decedent.19 His paternity was established with the use of DNA from his father's brother. If the Legislature decides to exclude intestate or probate proceedings from the current paternity testing laws, it may do so. Until then, posthumous paternity testing is expressly authorized by statute.20 The trial court's decision regarding his status as an unintentionally omitted child is affirmed. III. ¶31 TITLE 58 O.S. 2001 §122 PROHIBITS THE APPOINTMENT OF A BUSINESS PARTNER AS PERSONAL REPRESENTATIVE ONLYWHEN THE PROCEEDINGS ARE INTESTATE OR WHEN THE BUSINESS PARTNER IS NOT NAMED PERSONAL REPRESENTATIVE IN A WILL. ¶32 Title 58 O.S. 2001 §12221 provides, in pertinent part, that ". . . If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate." The personal representative is the decedent's brother, who was also a business partner with the decedent in "Whispering Pines Ranch, L.L.C.," a limited liability corporation. According to an application filed by the personal representative, the decedent was "owner of a 50% interest in" Whispering Pines LLC. ¶33 The will's only reference to an administrator and/or personal representative was to the decedent's daughter and it was crossed out. The business partner was not named anywhere in the will as the administrator and/or personal representative. Powell argues that because the personal representative was the decedent's business partner in the limited liability company, the trial court erred in appointing him to serve in that capacity. The personal representative contends that the statutory restrictions of 58 O.S. 2001 §12222 only preclude a business partner serving as personal representative when the decedent dies intestate, without a will. ¶34 He also contends that his appointment should not be disturbed because the objection was untimely. Title 58 O.S. 2001 §104,23 the statute governing objections to letters testamentary, does not provide a time limit to file an objection.24 Title 58 O.S. 2001 §129 provides that objections to the administrator on the grounds of incompetency be filed within 30 days after the administrator has been appointed.25 ¶35 The objection here is based on the administrator's status as a business partner with the decedent. While there may be causes in which an objection should be considered untimely, this cause is not one of them. Probate proceedings are equitable in nature.26 Here: 1) the parties have been objecting to the admission of the will and to the circumstances surrounding its execution since February 8, 2007; and 2) the personal representative did not reveal his status as a 50% interest owner in Whispering Pines Ranch., LLC., at the time of his appointment, but rather about a month later of January 31, 2007, when he filed the Application for Order Approving Sale of Real Estate.27 ¶36 Title 58 O.S. 2001 §12228 has not been amended since 1961. Since that time, this Court's case law has recognized the applicability of 58 O.S. 2001 §12229 to persons who die intestate as well as persons who die with valid wills. For instance, in In the Matter of the Estate of Haden K. Scott, 1979 OK 139 ¶6, 604 P.2d 846, a case in which the deceased died leaving a will, the Court applied 58 O.S. 2001 §122 stating: We take the clear mandate of these provisions to be that in the appointment of administrator with will annexed, necessitated because of the death of the named executor, the order of preference is governed by 58 O.S. 1971 §122. The right of the party best entitled to that appointment under § 122, as a matter of statutory law is mandatory, if otherwise competent, binding on the court and not a matter of discretion. (Citations omitted.) ¶37 Although Estate of Scott involved the death of an administrator named in the will, the concern was the absence of an administrator to serve as a personal representative. In the absence of a named administrator, the probate court must appoint a personal representative pursuant to the requirements of 58 O.S. 2001 §122.30 Here, the will's only reference to an administrator and/or personal representative was crossed out. ¶38 As was the case in Estate of Scott, there was an absence of administrator to serve as personal representative and the trial court should have relied on the provisions of 58 O.S. 2001 §122 in appointing a suitable personal representative.31 Nevertheless, because we have determined that the challenge to the holographic will was not untimely, it may be determined on remand to be invalid and inadmissable and the provisions of §122 would apply regardless. Pursuant to those provisions, decedent's brother, the business partner of Whispering Pines, L.L.C. should have been prohibited from serving as personal representative. The trial court erred when it appointed the decedent's business partner as the personal representative. CONCLUSION ¶39 The pretermitted son of a decedent and his half sibling challenged the administration of a holographic will of their father by his brother and business partner who was appointed personal representative. After DNA testing confirmed the son's lineage, the trial court declared the son an unintentionally omitted heir and awarded him his statutory share. Nevertheless, the son filed a motion for new trial which was denied. Both the son and the personal representative appealed. We hold that: 1) under the facts presented, the objections to admission of the holographic will were not untimely; 2) the paternity statute, 84 O.S. 2001 §215, applies to intestate and probate proceedings; and 3) 58 O.S. 2001 §122 prohibits the appointment of a business partner as personal representative only when the proceedings are intestate or when the business partner is not named personal representative in a will. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;CAUSE AFFIRMED IN PART/REVERSED IN PART AND REMANDED.32 KAUGER, WATT, EDMONDSON, REIF, J.J., SUMMERS, S.J., concur. TAYLOR, C.J., COLBERT, V.C.J., WINCHESTER, COMBS, J.J.,, dissent. FOOTNOTES 1 The petition in error seeking review of the denial of the motion for a new trial was filed July 8, 2009. Nearly 40 days later, the personal representative on the day that his response brief was due, filed a motion to dismiss the appeal as untimely. On December 18, 2009, the Court deferred this issue to the decisional stage to be decided by the reviewing court. The cause was assigned to the Court of Civil Appeals and it issued an opinion on July 22, 2010, without deciding the timeliness issue. At this stage in the proceeding, and because the objection was made over a month after the appeal was brought, we decline to address the motion to dismiss, even though the appeal appears to be timely filed. 2 Title 84 O.S. 2001 §215 provides: For inheritance purposes, a child born out of wedlock stands in the same relation to his mother and her kindred, and she and her kindred to the child, as if that child had been born in wedlock. For like purposes, every such child stands in identical relation to his father and his kindred, and the latter and his kindred to the child, whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. For all purposes, the issue of all marriages null in law, or dissolved by divorce, are deemed to have been born in wedlock. 3 Title 58 O.S. 2001 §122 provides: Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers or sisters. 5. The grandchildren. 6. The next of kin entitled to share in the distribution of the estate. 7. The creditors. 8. Any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. 4 Title 84 O.S. 2001 §54 provides: A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed. In 1925, the Court held in In re Estate of Hail, 1923 OK 689, ¶0, 235 P. 916, that when a holographic will offered for probate is contested on the sole ground that the day of the month is omitted from the date, but the will otherwise complies with the statute and there is no question of lack of mental capacity, undue influence, or duress involved, the omission of the day of the month from the date will not invalidate the will, and it will be admitted to probate. Here, the day was also omitted from the will, however, Hail would only be dispositive if the lack of day were the sole contest to the will's admission and it is not. 5 Knowledge of paternity was not an issue in the trial court because the court admitted the DNA testing without any objection from the family. The omitted heir and his half sibling in this cause are aligned. 6 Title 58 O.S. 2001 §61 provides: When a will has been admitted to probate, any person interested therein may at any time within three (3) months from the date the will was admitted to probate contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows: 1. That a will of a later date than the one proved by the decedent, revoking or changing the will, has been discovered, and is offered; or 2. That some jurisdictional fact was wanting in the probate; or 3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or 4. That the will was not duly executed and attested. 7 Title 58 O.S. 2001 §242 provides: If no person within sixty (60) days after the will has been admitted to probate contests the same or the validity thereof, the probate of the will is conclusive. 8 Title 58 O.S. 2001 §61, see note 6, supra. 9 State ex rel. Dept. of Transportation v. Perdue, 2008 OK 103 ¶11, 204 P.3d 1279. 10 State v. Torres, 2004 OK 12 ¶3, 87 P.3d 572; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107 ¶8, 777 P.2d 932; Horizons, Inc. v. Keo Leasing Co., 1984 OK 24 ¶4, 681 P.2d 757; Amarex, Inc. v. Baker, 1982 OK 55 ¶18, 655 P.2d 1040; Boose v. Hanlin, 1959 OK 166 ¶5, 346 P.2d 932. 11 The appellant's Objection to Application for Sale of Real Estate, Record at p. 26, provides in pertinent part: That said Kolleen Mailloux, objects to the Application for Order Approving Sale of Real Estate that was filed in this Court on January 31, 2007. Kolleen Mailloux requests that said sale not occur until such time as an appraisement of the decedent's real properties be conducted and presented to her review. Further, Kolleen Mailloux, objects to any further proceedings being conducted in this case until such time as the Court fully examines the details and circumstances surrounding the execution of the alleged holographic will by the decedent. Wherefore, Kolleen Mailloux prays that this Court not approve the pending sale of the decedent's real property until such time as a valid, adequate appraisal has been performed and that the circumstances surrounding the execution of the decedent's alleged holographic will have been fully and fairly litigated, and any other relief the Court may deem just or equitable. 12 St. 1890 §6895. 13 In the Matter of Estate of King, 1990 OK 138, 837 P.2d 463, The Court said in ¶10 that: Section 215 of title 84 does not violate the Equal Protection Clause of the federal Constitution. The statutory provisions in Lalli required a determination of paternity before the father's death. The United States Supreme Court held that those provisions did not violate the equal protection clause of the fourteenth amendment. Section 215 is less restrictive than the provisions upheld in Lalli. Further, section 215 meets the test articulated in the Trimble, Lalli, and Reed: Special burdens placed on children born out of wedlock as a prerequisite to taking from an alleged father's estate must be substantially related to a legitimate state interest. The orderly disposition of estates is a legitimate state interest which justifies "limitations on the time and the manner in which claims may be asserted." In the present case, since the father is dead, the special burdens placed on children for inheritance purposes under section 215 are acceptable for purposes of the fourteenth amendment. Unlike the statutory provisions under attack in Trimble and Reed, section 215 does not unnecessarily exclude 'some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.' As in Lalli, the statutory provision under attack here is substantially [837 P.2d 467] related to a legitimate state interest and does not violate the fourteenth amendment. (Citations omitted.) 14 Title 10 O.S. Supp. 2006 §7700-103 provides: A. The Uniform Parentage Act applies to determination of parentage in this state. B. The court shall apply the law of this state to adjudicate the parent-child relationship. The applicable law does not depend on: 1. The place of birth of the child; or 2. The past or present residence of the child. C. The Uniform Parentage Act does not create, enlarge, or diminish parental rights or duties under other laws of this state. D. The district or administrative courts are authorized to adjudicate parentage under the Uniform Parentage Act. 15 Title 10 O.S. Supp. 2006 §7700-202 provides: A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other. 16 Title 10 O.S. Supp. 2006 §7700-203 provides: Unless parental rights are terminated, a parent-child relationship established under the Uniform Parentage Act applies for all purposes, except as otherwise provided by the laws of this state. 17 Title 10 O.S. Supp. 2006 §7700-509 provides: For good cause shown, the court may order genetic testing of a deceased individual. 18 In re Estate of Williams, 891 N.Y.S.2d 268, 272 (N.Y. Sur. 2009)(Non-marital child entitled to DNA testing to determine if decedent was the child's father.); In re Estate of Kingury, 946 A.2d 389, 393 (Me. 2008) (Claimant's request to probate court, for exhumation of testator's body for genetic testing to determine if claimant was testator's biological daughter did not constitute time-barred paternity action.); In re Michael R., 793 N.Y.S.2d 710, 711 (N.Y.Sur. 2004) (Recognizing acceptance of posthumous DNA testing results and clear and convincing evidence of paternity.); Ryan v. Rickman, 584 S.E.2d 502, 504 (W.Va. 2003) (DNA testing revealed child was entitled to share in intestate estate.). See also, Fort Dearbourn Life Ins. Co. v. Turner, 521 F. Supp. 2d 499, 503 (E.D.N.C. 2007) (Posthumous paternity testing allowed to determine paternity of illegitimate child for life insurance policy.); Ashley v. Mattingly, 932 A.2d 757 (Md. App. 2007) (Recognizing that estates and trusts statutes allow trial court discretion to order genetic testing if it is in the child's best interests.); In re Estate of Jotham, 722 N.W.2d 447, 452 (Minn. 2006) (Parentage Act must apply in its entirety to determine paternity for purposes of intestate succession.). Kellog, Thomas, Determination of Heirship, 68 Am. Jur. Proof of Facts 3d 93 (2002) §8 Use of scientific evidence to determine pedigree explains that modern courts permit scientific evidence such as genetic test results to be admitted as evidence of pedigree, a movement that has been building since the 1940's. 19 The record indicates that Powell was born out of wedlock and subsequently adopted. Details regarding the adoption are not provided. Neither party takes issue with Powell's ability to be both adopted and an unintentionally omitted heir from his natural father. Estate of Flowers v. Clinkingbeard, 1993 OK 19, ¶10, 848 P.2d 1146 [Adopted children may not be eliminated as beneficiaries or devisees absent a clear and explicit expression to do so.]; Title 10 A O.S. Supp. 2009 §1-4-906 of the Oklahoma Children's Code provides in pertinent part: A. The termination of parental rights terminates the parent-child relationship, including: 1. The parent's right to the custody of the child; 2. The parent's right to visit the child; 3. The parent's right to control the child's training and education; 4. The necessity for the parent to consent to the adoption of the child; 5. The parent's right to the earnings of the child; and 6. The parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent.. . . See also, 10 O.S. 2001 §7505-6.5 which relieves natural parents of the ability to inherit from an adopted child through descent and distribution but has not provisions regarding the adopted child inheriting from the natural parent. 20 Title 10 O.S. Supp. 2006 §7700-509 see note 17, supra. 21 Title 58 O.S. 2001§122 see note 2, supra. 22 Title 58 O.S. §122 see note 2, supra. 23 Title 58 O.S. 2001§104 provides: Any person interested in a will may file objections in writing, to granting letters testamentary to the persons named as executors , or any of them; and the objections must be heard and determined by the court. A petition may at the same time, be filed for letters of administration, with will annexed. 24 In Dillow v. Campbell, 1969 OK 63 ¶6, 453 P.2d 710, the Court discussed 58 O.S. §104, but did not discuss any time limit for filing an objection to the appointment of a personal representative. 25 Title 58 O.S. 2001 §129 provides: Any person interested may contest the petition by filing written opposition thereto, on the ground of the incompetency of the applicant, or may, at any time within thirty (30) days after an administrator has been appointed, assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file his petition in the court. The court thereof shall set a day for hearing the same and the contestant shall give written notice by mail, postage prepaid, to the known heirs and the original petitioner or administrator, if the appointment has been made, of said contest, and the time and place set for hearing the same, at least five (5) days before said hearing. 26 In the Matter of Spears, 2008 OK 90, ¶8, 179 P.3d 1265; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; In re Estate of Wilder, 1976 OK 113, ¶7, 554 P.2d 783. 27 The Objection to Application for Sale of Real Estate filed by the appellant Mailloux on February 8, 2007, provides in pertinent part: . . .Furthermore, Kolleen Mailloux, objects to any further proceeding being conducted in this case until such time as the Court fully examines the details and circumstances surrounding the execution of the alleged holographic will by the decedent. Wherefore, Kolleen Maillous prays that this Court not approve the pending sale of the decedent's property until such time as a valid, adequate appraisal has been performed and that the circumstances surround the execution of the decedents alleged holographic will have been fully and fairly litigated, and any other relief the Court may deem just or equitable. Pursuant to 58 O.S. 2001 §389 when a partnership interest belongs to any estate, the trial judge is required to carefully inquire into the condition of the partnership affairs and to examine the surviving partner. 28 Title 58 O.S. 2001 §122, see note 2, supra. 29 Title 58 O.S. 2001 §122, see note 2, supra. 30 Title 58 O.S. 2001 §122, see note 2, supra. In Sparks v. Steele, 1972 OK 127, 501 P.2d 1106 the Court noted that "[t]he right to appointment as administrator is a matter of statutory law, so appointment of the applicant best entitled under Section 122, if competent to serve as such, is mandatory, not discretionary with the court." 31 Title 58 O.S. 2001 §122, see note 2, supra. 32 Our disposition of this appeal renders the personal representative's motion for appeal related attorney fees and costs moot. WINCHESTER, J., with whom TAYLOR, C.J., COLBERT, V.C.J. and COMBS, J. join, dissenting: ¶1 I respectfully dissent. Contrary to the doctrine of stare decisis, the majority opinion overrules In re King, 1990 OK 138, 837 P.2d 463, and In re Geller, 1999 OK CIV APP 45, 980 P.2d 665. King construed § 215(d) of title 84.1 The statute provides in pertinent part that for inheritance purposes, a child born out of wedlock stands in identical relation to his father and his kindred, and the latter and his kindred to the child whenever "the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction." The majority opinion objects to the construction given § 215(d) by King, which holds there must be a judicial determination of paternity before the death of the father. The Court's opinion states and emphasizes in bold letters that "The statute does not have this requirement written into it--nor has it ever had such language."2 ¶2 Construing language in statutes and pronouncing what the law means constitutes the essential role of the judiciary in the American government system, and gives precedential effect to those decisions. This process makes the common law what it is. If a new court composed of different members were to overrule each pronouncement of a former court that the new court now finds objectionable, the common law could no longer be relied on to serve as guide to the interpretation of statutes and constitutional provisions. A new composition of a high court would result in lower courts closely examining established case law to determine if the new court would likely sustain or overrule that law based on potentially changed ideology within a new court. ¶3 In Lasiter v. Ferguson, 1920 OK 269, 192 P. 197, cert. den. 254 U.S. 651 (1920), the Court made this observation about the principle of stare decisis: ". . . [I]t is the duty of this court, on the principle of stare decisis, to adhere to such [prior judicial] decisions although the court may be of the belief . . . that such decisions are not sound, for when parties have acted upon decisions as settled law, and rights have been vested thereunder, their inherent correctness or incorrectness in the abstract is of less importance than that the rule of property so established should be constant and invariable." Lasiter, 1920 OK 269, ¶ 8, 192 P. at 199. ¶4 In 1990, the King Court construed § 215(d) to mean that a proceeding to determine paternity must take place before the death of the father. Since that time, the lower courts and the lawyers of this state have properly treated this pronouncement, in accordance with the tradition of common law, to be binding precedent. The Court of Civil Appeals in Geller properly followed that rule. Lawyers must have depended on this pronouncement in drafting wills, and lower courts in probate cases must have followed it in determining how and whether to exclude individuals purporting to be children, grandchildren, or heirs, but born out of wedlock. This new rule promulgated by the majority will certainly produce a re-drafting of wills in an attempt to exclude unknown and unknowable claimants as blood relations in probate cases. ¶5 The legislature has had over twenty years to amend § 215(d), if indeed those lawmakers had determined that the King court had misconstrued the intention of that branch of government. Failure to amend a statute after its judicial construction constitutes legislative acquiescence to that construction. R.R.Tway, Inc. v. Oklahoma Tax Commission, 1995 OK 129, ¶ 13, 910 P.2d 972, 976. Over twenty legislative sessions have passed since the Supreme Court's decision in King and over ten sessions since the decision of the Court of Civil Appeals in Geller, ample opportunity to change the settled construction of § 215(d), yet the legislature has not seen fit to do so. "Legislative silence, when it has the authority to speak may be considered as an understanding of legislative intent." Owings v. Pool Well Service, 1992 OK 159, ¶ 8, n. 10, 843 P.2d 380, 382, n. 10. ¶6 The Court of Civil Appeals in the cause now before us, held that a judicial determination of paternity after decedent's death based primarily on the testimony of the putative heir's biological mother and on the DNA results is not permitted as a basis for inheritance under § 215(d). It constitutes a post-death determination. This holding, based on King, properly reflects the current case law. A post-death determination leaves no opportunity for a man to defend against a DNA determination of parentage. Aside from men who conceive children outside of wedlock, there are men who are sperm donors, whose purpose is to provide an opportunity for children to childless couples. The Artificial Insemination statutes provide that the information is not open to the general public, 10 O.S.2001, § 553, and that any child born as a result of the process shall be considered for all legal intents and purposes to be the naturally conceived legitimate child of the husband and wife, 10 O.S.2001, § 554. If the donor is not deceased, he may use these statutes as a defense, but if he is deceased, under the majority opinion, the DNA test could be used to prove parentage without a defense available to the true heirs, who may not be aware of the circumstances of conception. Today's rule opens the door for post-death claims by an unknown number of potential heirs. If sperm is frozen, it is possible for conception to occur after the death of the sperm donor. ¶7 The majority opinion has overruled an established rule of law for the orderly disposition of property at death. The cases have not been overruled for extraordinary cause, only because the majority disagrees with the previous result. This new holding creates uncertainty for those planning the disposition of their estates, and those rightfully interested in those estates. The door is now left open for litigation resulting in the depleting of estate assets over claims by putative heirs seeking to prove the deceased is their father. These problems should be left to the legislature, which can craft a comprehensive solution, not this Court, which has unnecesarily created a problem that did not exist prior to this date. FOOTNOTES 1 1977 Okla.Sess.Laws, ch. 36, § 1, 84 O.S.2001, § 215. 2 Majority opinion, ¶ 25. COMBS, J., JOINED BY TAYLOR, C.J., COLBERT, V.C.J., WINCHESTER, J., DISSENTING: ¶1 I must respectfully dissent. The majority opinion authorizes a determination of paternity as a basis for intestate succession and inheritance, post-death, a position I cannot support. ¶2 Appellant Powell, sought a share of Decedent's estate, as an omitted heir, under 84 O.S. § 132, claiming he was born out of wedlock to a woman who gave him up for adoption, and Decedent was his biological father. Subsequent to the decedent's death, and with the aid of DNA testing performed on the Decedent's surviving brother, Archie Dicksion, appellant established his theory of paternity. Appellant sought a share of Decedent's estate as an omitted heir. ¶3 Pursuant to the provisions of 84 O.S. 2001, § 215, in order to establish his omitted-heir status, the appellant must successfully prove one of four methods. ¶4 84 O.S. 2001, § 215 provides in pertinent part: For inheritance purposes, a child born out of wedlock stands . . . in identical relation to his father . . . , whenever: (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. ¶5 In Matter of Estate of King, 1990 OK 138, ¶12, 837 P.2d 463, 467, in an opinion authored by Justice Hodges, we held: Section 215 provides . . . (4) there is a judicial determination of paternity before the death of the father . . . (Emphasis added.) ¶6 In the present matter, Powell seeks to establish his right to inherit under the fourth method, specifically with the use of DNA testing, conducted after the death of his alleged father. In In the Matter of the Estate of Gertrude Jo Geller, 1999 OK CIV APP 45, ¶¶11-17 and 24, 980 P.2d 665, 669-670, the Appellant, Holly White, sought to determine heirship by reason of a sexual encounter between her mother and Jay Myers, the son of the Gertrude Geller. Mr. Myers had predeceased his mother, Ms. Geller by some thirty-seven years. Ms. White sought to prove heirship by exhumation of her alleged father's body. The court stated with regard to Section 215(d): As section 215 (d) is phrased-"the father was judicially determined to be such in a paternity proceeding . . ."-it does not appear to contemplate post-death genetic testing..." (Emphasis original.) I agree with this interpretation. ¶7 The majority assert the Uniform Parentage Act, 10 O. S. Supp. 2006, §§ 7700-101 et seq., which became effective in 2006, now specifically applies to paternity determinations in probate matters. The majority states it is illogical to allow posthumous genetic DNA testing under the Uniform Parentage Act, but not to allow it in probate actions in which the statute expressly allows an individual to prove heirship via paternity proceedings. What is illogical is the concept that a father would not have the opportunity to be heard in paternity proceedings, notwithstanding technology has advanced to such levels as to establish his relationship to a child born out of wedlock with a high degree of certainty. ¶8 Our laws of succession allow him the opportunity to dispose of his assets in a knowing manner. See 84 O.S. § 41. The right to make a will includes the right to make it according to the testators own desires, subject only to statutory restrictions. Ward v. Cook, 1931 OK 575, 3 P2d. 728, 152 Okl. 234. This was the intent of the legislature in stating "the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction." (Emphasis original.) If the parent-child relationship had been established prior to his death, the father could make disposition of his estate with the knowledge of the relationship. Section 215 applies to "omitted children" a putative father, once determined by a court of competent jurisdiction to be the father, would have the opportunity to provide for this child or disinherit the child in accordance with 84 O.S. § 132. ¶9 The United States Supreme Court, in upholding the constitutionality of a New York statute which provided for a procedure during the lifetime of the father to make an order of filiation declaring paternity in a proceeding brought during the pregnancy of the mother or within two years from birth of the child,1 addressed a similar issue in Lalli v. Lalli, 439 U.S. 259 (1978). ¶10 The United States Supreme Court addressed the greatest concern- how to achieve finality of a decree in any estate when there always exist the possibility, however remote, of a secret child born out of wedlock hidden in the buried past of a parent or an ancestor of a class of beneficiaries. Finality in a decree of distribution is essential, since title to real property passes under such decree.2 See, Lalli v. Lalli, supra. ¶11 The provisions of § 215(d) provide a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy and finality in estate administration are enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put before a court of law at a time when the putative father is available to respond, or to react to a judicial determination of paternity, rather than first brought to light when the distribution of the assets of an estate is hanging in the balance. ¶12 A post-death determination of paternity based upon scientific testing, although likely accurate, does not afford the father the basic opportunity to be heard or to change his testamentary plans after a court of competent jurisdiction has made a determination of paternity. A child's right to inherit should not outweigh an individual's right to dispose of their property as they feel appropriate. ¶13 To follow the majority's interpretation there would be little if any finality to the distribution of ones estate if, through the advances of science, one could assert heirship and entitlement for years or decades after the death of the putative father. How would a putative father disinherit all "unknown issue?" The basic principles of due process would allow a man who has been determined to be a father at a paternity proceeding to make a disposition of his estate in light of a court's decision. ¶14 Without a determination of paternity, prior to the death of Valatus Merral Dicksion, Powell is not an heir and has no standing in the probate proceeding. A right to inherit property is granted solely by statute. Matter of Estate of Baxter, 1992 OK CIV APP 15, ¶17, 827 P.2d 184, 187. Succession to estates is strictly a matter of statutory regulation, which cannot be changed by courts. In Re Felgars's Estate, 1954 OK 193, ¶22, 272 P.2d 453, 456; Matter of Estate of Swartz, 1994 OK CIV APP 7, ¶3, 870 P.2d 179, 180. ¶15 I respectfully dissent. FOOTNOTES 1 N.Y. Est., Powers & Trusts Law § 4-1.2 (McKinney 1967) 2 58 O.S. 2001, § 711.

8ba74ded-cb3d-4e1a-90fd-42dbcbc8d32f

Depart. of Securities ex rel. Faught v. Wilcox

oklahoma

Oklahoma Supreme Court

DEPT. OF SECURITIES ex rel. FAUGHT v. WILCOX2011 OK 82Case Number: 109111Decided: 10/11/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, ADMINISTRATOR and DOUGLAS L. JACKSON, IN HIS CAPACITY AS THE COURT APPOINTED RECEIVER FOR THE INVESTORS AND CREDITORS OF SCHUBERT & ASSOC. AND FOR THE ASSETS OF MARSHA SCHUBERT, Plaintiffs/Appellees,v.MARVIN LEE WILCOX and PAMELA JEAN WILCOX, Defendants/Appellants. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, HON. PATRICIA G. PARRISH, DISTRICT JUDGE ¶0 On remand after this Court's opinion in Dept. of Securities ex rel. Faught v. Blair, 2010 OK 16, 231 P.3d 645, the trial court granted partial summary judgment in favor of the plaintiffs on the issue of defendants' liability, finding that there was no question of material fact that the defendants were not innocent investors entitled to retain the reasonable dividend provided in Blair due to their active participation in the Ponzi check-kiting scheme. The amount of defendants' net profits was in dispute and was set for non-jury trial. After further discovery, the plaintiffs moved for summary judgment on the basis that there was no longer any dispute as to the amount of defendants' net profits. The trial court entered judgment in favor of the plaintiffs and against the defendants in the amount of $509,505.00, plus prejudgment and post-judgment interest, and ordered that amount to be paid to the receiver. Defendants raise four issues in their petition in error, three of which were not presented to the trial court and are raised for the first time on appeal. As to the remaining issue, we find that summary judgment was proper. The pending appellate motions are denied. AFFIRMED. Bradley E. Davenport, GUNGOLL, JACKSON, COLLINS, BOX & DEVOLL, P.C., and Oklahoma City, OK, for Appellee Douglas L. Jackson, Receiver.Amanda Cornmesser, Melanie Hall and Gerri Kavanaugh, OKLAHOMA DEPARTMENT OF SECURITIES, Oklahoma City, OK, for Appellee Oklahoma Department of Securities.Robert N. Sheets, PHILLIPS MURRAH, P.C., Oklahoma City, OK, for Appellants. EDMONDSON, J. ¶1 This is a second appeal resulting from a Ponzi scheme perpetrated by Marsha Schubert, operating as Schubert and Associates (Schubert). The facts are set forth in the first appeal, Dept. Of Securities ex rel. Faught v. Blair, 2010 OK 16, 231 P.3d 645 (Blair). The defendants herein, Marvin and Pamela Wilcox, were among the appellants in Blair appealing from summary judgments obtained by the plaintiffs on the theory of unjust enrichment against 158 "relief" defendants who had received more money than they invested in the Ponzi scheme.1 Plaintiffs had sought to recover all amounts the relief defendants had received from the scheme in excess of their original investment. ¶2 In Blair, the relief defendants had not been charged with violating the Oklahoma Securities Act of 2004, 72 O.S. Supp. 2003 §1-101, et seq., and the preliminary question was whether the Department could proceed against non-violators of the Act. We held that the Act provided authority for the Oklahoma Department of Securities to bring an action against innocent investors in a Ponzi scheme when they received a profit from the Ponzi scheme that was an unreasonable return on their investment. We held that the court-appointed receiver could bring a proceeding for equitable relief against innocent investors for recovery of funds that qualify as an unjust enrichment obtained by the investors from the Ponzi scheme. We held that an Oklahoma District Court has subject matter jurisdiction to adjudicate competing equitable claims of ownership to funds that were part of an investment scheme which violated the securities laws. We also held that an innocent investor in a Ponzi scheme may use equitable setoffs in defense against an unjust enrichment claim brought by the plaintiffs. ¶3 On remand, the Department of Securities and the Receiver (referred to herein as Department) moved for summary judgment against the defendants, Marvin and Pam Wilcox (Wilcoxes), on grounds that the Wilcoxes were not entitled to the equitable relief provided for innocent investors in Blair because they were partners with Schubert and were actively involved in the check-kiting scheme operated by Schubert that supported her Ponzi scheme.2 Department argued that more than $150,000,000.00 ran though the Wilcoxes' bank accounts, that they saw no statements from a day trading account and that they acted with reckless disregard for the legitimacy of Schubert's scheme. Department listed eighteen (18) undisputed material facts. ¶4 Department asserts that it was undisputed that Schubert's Ponzi scheme was supported by a long-running check exchange or check-kiting scheme, primarily between the accounts of three individuals, including the defendant Marvin Wilcox, and the accounts of Schubert. The consistent movement of funds between these accounts created a "float" that Schubert used to pay purported investment returns. In exchange for a check drawn on an account of Marvin Wilcox, Schubert would write a check from one of her bank accounts, usually for a greater dollar amount, payable to Marvin Wilcox. ¶5 Between December 12, 2002, and October 6, 2004, more than 650 transactions took place between Schubert and the Wilcoxes involving the check exchange. The Wilcoxes transferred $77,739,746.00 to Schubert and Schubert transferred back to the Wilcoxes $78,249,251.56. The Wilcoxes received $509,505.00 in profits paid to them by Schubert from Schubert's commingled funds. In support of these undisputed facts, Department attached the affidavit of Dan Clarke, a certified fraud examiner and supervisory investigator for Department, based on his analysis of deposits and disbursements from the various Schubert accounts. ¶6 In support of the motion, Department offered evidence the Wilcoxes were in partnership with Schubert. They attached Schedule E forms (Supplemental Income and Loss from Partnerships) from the Wilcoxes' IRS 1040 returns for tax years 2002 and 2003, in which they reported to the IRS that they were partners with Schubert & Associates. Department asserted, based on deposition testimony of Marvin Wilcox, that it was undisputed that Wilcox never saw any records relating to a day trading account and never received any statements from such an account. Marvin Wilcox was in the banking industry his entire adult life, last serving as Vice President of NBC Bank in Kingfisher. Wilcox gave Schubert physical control of multiple checks from his bank accounts that were blank except for his signature. The Wilcoxes received monthly bank account statements for their personal checking accounts, but claimed that they did not review or reconcile them. ¶7 In response, the Wilcoxes disputed that they were partners with Schubert. They stated that they did not prepare their tax returns and did not know why they were shown as partners with Schubert on their 2002 and 2003 tax returns. They claimed that they were never partners with Schubert and they never received any K-1 partnership forms from the partnership. The Wilcoxes admitted that they did not receive statements or anything that specifically referred to a specific day trading account, but stated that they did receive written notes from Schubert that allegedly contained account balances from day trades. They argued that it was a fact question whether or not they were innocent investors. The Wilcoxes submitted their own identical affidavits as evidence in support of their objections. They stated that they were not aware of the existence of a Ponzi scheme in their dealings with Schubert. ¶8 The Wilcoxes also disputed Department's calculations of the amount of their net profits from the commingled funds. The Wilcoxes admitted that they received $77,583,050.00 from Schubert, and claimed that their net profit from the commingled funds was $133,945.00, not $509,505.00. They argued that whether their $133,945.00 in net profits was "unreasonable" under the Blair standard presented a question of fact. The Wilcoxes did not dispute the remainder of plaintiffs' undisputed facts regarding the Ponzi and check-kiting scheme.3 ¶9 Department refuted the Wilcoxes' denial of their partnership with Schubert by attaching the two K-1 "Partner's Share of Income" forms for 2002 and 2003 produced by the Wilcoxes during discovery and attached to their signed IRS tax returns for those years. Department also submitted a photocopy of a letter from Marvin Wilcox to AXA (where Wilcox had an account and for whom Schubert had worked) dated July 7, 2004, in which Wilcox stated that he was partners with Schubert and had entered the partnership at his own risk, knowing that the money he invested with Schubert in an options account was not guaranteed in any form. As to the receipt by Wilcox of any records pertaining to a day trading account, Department asserted, based on Wilcox's deposition testimony, that the "written notes" that Wilcox claimed to have received were nothing more than "sticky notes" on which Schubert would write down an account balance when requested. Department attached the accounting, prepared by a CPA firm, on which their calculation of $509,505.00 in net profits was based, along with photocopies of the Wilcoxes' bank statements reflecting check exchanges with Schubert on an almost daily basis. ¶10 At the hearing on the plaintiffs' motion for summary judgment, the Wilcoxes' attorney advised the trial judge that they disputed the amount of net profit and whether the return on investment was reasonable, arguing that these were fact questions not proper for summary judgment.4 The Wilcoxes made no further argument regarding their status as "innocent investors" nor did they seek to offer additional evidence on that issue. ¶11 The trial judge granted partial summary judgment in favor of the plaintiffs on the issue of liability, finding that there was no genuine issue of material fact pertaining to the liability of the Wilcoxes on Department's unjust enrichment claim. The trial judge found that by virtue of their participation in the Schubert check-kiting scheme, the Wilcoxes were not innocent investors and the standard for recovery from investors in Ponzi schemes set forth in Blair did not apply. The trial court found that the Wilcoxes were unjustly enriched by all monies netted from their association with Schubert's Ponzi and check-kiting schemes. Because there was a genuine issue of material fact pertaining to the amount of money that the Wilcoxes netted from the Ponzi scheme, the trial judge left the amount to be determined by jury or non-jury trial. ¶12 A pretrial conference order setting the matter for non-jury trial was filed October 22, 2010. Department set out that it was seeking, on the basis of unjust enrichment, to recover fictitious profits in the amount of $509,505.00, plus interest, that Schubert paid to Wilcoxes for which they did not provide reasonably equivalent value. The Wilcoxes asserted no claim for relief and did not assert any affirmative defenses. They maintained only that their net profit was $133,945.00, not $509,505.00. ¶13 On November 18, 2010, Department filed a second motion for summary judgment, asserting that further documentation received from the Wilcoxes demonstrated that no issue of material fact remained as to the amount the Wilcoxes netted from Schubert's Ponzi scheme. Department's evidence reflected that the net profit to the Wilcoxes was at least $625,518.00, instead of the $509,505.00 originally calculated, and that five checks, totaling $285,000.00, that the Wilcoxes had used as a setoff in their calculation of net profits were never part of the commingled funds used by Schubert. The Wilcoxes did not respond to the motion. ¶14 On December 17, 2010, the trial court entered judgment in favor of Department and against the Wilcoxes in the amount of $509,505.00, plus prejudgment and post-judgment interest and costs. The Wilcoxes were ordered to disgorge and/or repay the sums of money to the Receiver. ¶15 The Wilcoxes appealed, raising four issues: 1) that the trial court exceeded the mandate of this Court in Oklahoma Department of Securities v. Blair, 2010 OK 16; (2) that the trial court should have taken into account that the Department of Securities was judicially estopped from seeking judgment against the Wilcoxes concerning whether or not they were innocent investors, as that issue had been litigated. The Department of Securities has conceded all 158 investors were innocent investors and had not violated securities laws of the State of Oklahoma; (3) that the decision of the trial court exceeds the plaintiffs' theory of the case set forth in the pretrial order, which shows the grounds of recovery to be unjust enrichment which was the same grounds on which they previously sought judgment against the Wilcoxes. (4) that whether the Wilcoxes were not innocent investors should have been subject to a full trial, as there are material issues of fact as to whether the Wilcoxes were anything other than innocent investors in Marsha Schubert's Ponzi scheme. We granted the appellants' motion to retain the appeal. ¶16 The standard of review for summary judgment is de novo. Our review is based on the actual record presented to the trial court and the issues actually presented to the trial court. Culpepper v. Loyd, 1978 OK 90 ¶6, 583 P.2d 500, 501. An appellate court reviewing a summary judgment cannot take notice of any material that was not properly before the trial court at the time of its rendition. Frey v. Independence Fire & Casualty Co., 1985 OK 25 ¶6, 698 P.2d 17, 20. ¶17 The first three issues in the appellants' petition in error were not raised in the trial court, and will not be heard for the first time by this Court on appeal.5 The Wilcoxes never argued before the trial court that the Department was judicially estopped from adjudicating whether or not they were innocent investors entitled to equitable relief, and they never argued that to do so would exceeded the mandate of Blair. In the trial court, the Wilcoxes argued that whether they were innocent investors presented a question of fact that should not be determined on summary judgment. Likewise, they argued before the trial court that a question of fact existed as to whether their net profit calculation was unreasonable under Blair's standard of recovery. The Wilcoxes never raised an issue in the trial court regarding the plaintiffs' theory of recovery based on unjust enrichment. Where not properly presented in the trial proceedings or in motion for new trial, issues not properly presented to the trial court cannot be considered by this Court on appeal. Steiger v. City National Bank of Tulsa, 1967 OK 41, 424 P.2d 69, 72. ¶18 We turn to appellants' remaining issue, that their status an innocent or non-innocent investors should have been subject to a full trial because there are material issues of fact. Our de novo review of the record presented to the trial court does not support appellants' assertion that there are material facts remaining in dispute regarding their investor status. All material facts set forth in the statement of the moving party which are supported by admissible evidence are deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the adverse party which is supported by admissible evidence. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by Supreme Court). When evidence is presented showing the existence of uncontroverted material facts, the burden shifts to the opposing party to identify those material facts he or she alleges remain in dispute and provide supportive evidentiary materials justifying trial on the issue. Reeds v. Walker, 2006 OK 43 ¶32, 157 P.3d 100, 116. ¶19 In attempting to show the existence of a question that must be tried, the party may not rely on bald contentions that facts exist to defeat the motion. Roberson v. Waltner, 2005 OK CIV APP 15¶8, 108 P.3d 567, 569. We said, in Runyon v. Reid, 1973 OK 25 ¶14, 510 P.2d 943, 951: "When on the basis of established facts the plaintiff is entitled to summary judgment as a matter of law, the defendant contending and arguing that there is a genuine issue of material fact cannot and will not make it so," citing Aktiengesellschaft Der Harlander, etc. v. Lawrence Walker Cotton, 288 P.2d 691 (N.M. 1955). ¶20 Department offered admissible evidence that the Wilcoxes were not "innocent investors" or "innocent victims" of the Ponzi scheme, but were in fact partners with Schubert whose bank accounts were actively used in Schubert's check-kiting scheme. The Wilcoxes did not deny the existence of or their active participation in Schubert's check-kiting scheme. The only evidence submitted by the Wilcoxes in denial of the partnership was their virtually identical self-serving affidavits.6 Department refuted Wilcoxes' denial of partnership by submitting the Schedule K-1 partnership returns they received from Schubert and a letter in which Marvin Wilcox admitted the partnership with Schubert. The Wilcoxes never sought to offer additional evidence in the trial court on the issue of their status as innocent investors. ¶21 It stands uncontroverted that the Wilcoxes' bank accounts were used in furtherance of Schubert's check-kiting scheme to create the "float" used by Schubert to pay purported investment returns. The Wilcoxes did not dispute Department's evidence of the numerous transactions between their accounts, nor the more than seventy-seven million dollars in deposits to Schubert from the Wilcoxes. They admitted receiving $77,583.050.00 over the course of their dealings with Schubert. The Wilcoxes produced no evidence of the existence of a legitimate day trading account. The evidence presented by Department placed the burden on the Wilcoxes to come forward with evidence to demonstrate the existence of a question as to whether they were innocent investors entitled to the equitable relief provided by Blair. Their bald assertion that they were not aware of the existence of a Ponzi scheme is insufficient. The evidentiary material provided by the Wilcoxes failed to raise a dispute on this issue and did not meet their burden to overcome the motion for summary judgment. ¶22 Rule 13(e), Rules for the District Courts, provides that if the court finds that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for that party. In this case, the trial court determined that there was no dispute as to the material fact that the Wilcoxes were not "innocent" investors entitled to the equitable treatment provided to innocent investors in Blair. In Blair, we held that the district court had jurisdiction to determine equitable claims to ownership of funds that were part of the Ponzi scheme. The trial court in this case determined that it would be inequitable to allow the Wilcoxes to keep any of their profits from the Ponzi scheme. Having reviewed the evidentiary materials presented to the trial court, we find that there is no dispute of material fact justifying trial on this issue. ¶23 As a final matter, the parties have filed motions in the appeal that have not been ruled on. Appellants filed a motion for additional briefing on the issues of judicial estoppel and exceeding the mandate of Blair. Department filed a motion to dismiss the appeal on the grounds of waiver because the Wilcoxes failed to raise or present their issues to the trial court. The Wilcoxes' response did not address waiver, but instead argued the merits of the issues. Department then filed a motion to amend the record on appeal to incorporate three documents that they deemed necessary to rebut new issues raised in the response. Based on our holding in this case, we deny the motion for additional briefing, the motion to supplement the record and the motion to dismiss. ¶24 ALL JUSTICES CONCUR FOOTNOTES 1 The Wilcoxes were appellants in Supreme Court No. 104,004. 2 Department raised other grounds for summary judgment which we need not consider here due to the trial court's ruling on the issue of Wilcoxes conduct vis a vis Schubert. 3 The Wilcoxes disputed paragraphs 5, 13, 14 and 16, and part of paragraph 12 of plaintiffs' eighteen undisputed facts. Rule 13(b), Rules for the District Courts, 12 O.S. 2001, Ch. 2, App., provides that any party opposing summary judgment must file a concise written statement of the material facts as to which a genuine issue exists and the reasons for denying the motion. In the statement, the adverse party shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages and paragraphs or lines of the evidentiary materials. 4 Counsel for Wilcoxes on appeal is different from their counsel in the trial court. 5 Errors that could have been raised in the trial court may not be raised for the first time in the appellate court. Arkansas Louisiana Gas Co. v. Cable, 1978 OK 133, 585 P.2d 1113, 1116, citing 12 O.S. § 992. 6 Marvin Wilcox's affidavit provides, in pertinent part: 1. I, Marvin Wilcox, have personal knowledge of the facts and matters set forth below. 2. Pam Wilcox is my spouse, and we filed joint tax returns for the years 2002 and 2003. 3. I am unaware as to why Schubert and Associates was listed in our 2002 and 2003 tax returns as a partnership, and I have never received any K-1's from Schubert and Associates. 4. My spouse and I received $77,583.050.00 over the course of our dealings with Schubert and Associates, for a net profit of $133,945.00. 5. Throughout my dealings with Schubert and Associates, I was never aware of the existence of a Ponzi scheme. 6. I do not recall whether I contracted with Schubert for a particular interest rate.

1d0d837e-0c87-4ae3-9b9a-d189c0ae509f

Shull v. Reid

oklahoma

Oklahoma Supreme Court

SHULL v. REID2011 OK 72Case Number: 109136Decided: 07/06/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. PATRICIA SHULL and BRIAN SHULL, Plaintiffs/Petitioners, v.MONICA REID, M.D., ANDREW ELIMIAN, M.D., ANDREW WAGNER, M.D., ERIC KNUDSTON, M.D., and OU MEDICAL CENTER, Defendants/Respondents. ON WRIT OF CERTIORARI TO REVIEW CERTIFIEDINTERLOCUTORY ORDER OF THE DISTRICT COURT OFOKLAHOMA COUNTY, OKLAHOMA,HONORABLE DANIEL J. OWENS ¶0 This is a first-impression question where the trial court lacked guidance as to what damages are available to parents of an unhealthy, abnormal child, bringing a claim for wrongful birth and medical malpractice. CERTIORARI PREVIOUSLY GRANTED;CERTIFIED INTERLOCUTORY ORDERREVERSED AND REMANDED Giles H. Manley, M.D. & Hal J. Klienman (pro hac vice), JANET, JENNER & SUGGS, LLC, Baltimore Maryland, and Shannon F. Davies, Courtney D. Powell, Andrew W. Lester, LESTER LOVING & DAVIES P.C., Edmond, Oklahoma, for Patricia and Brian Shull, Plaintiffs/Appellants. Chad Moody, Leslie C. Weeks, Sidney D. Smith, Jr., RODOLF &TODD, Tulsa, Oklahoma, for OU Medical Center, Defendants/Appellees. Kyle N. Sweet, Vanessa A. Hicks, THE SWEET LAW FIRM, Oklahoma City Oklahoma, for Monica Reid M.D., Andrew Elimian M.D., Andrew Wagner, M.D., and Eric Knudtson, M.D., Defendants/Appellees. COMBS, J. ¶1 On June 8, 2009, the Shulls initiated an action sounding in medical malpractice seeking compensation for the injuries suffered as a result of the Appellees' alleged malpractice in failing to properly diagnose a Cytomegalovirus infection, ¶2 Defendants/Appellees filed a Partial Motion for Summary Judgment alleging the Shulls may only recover damages for the medical cost of continuing the pregnancy, offset by the cost of termination of the pregnancy. The district court found the issue raised in the Defendants/Appellees' motion was one of first impression and the trial court lacked guidance because there were no published opinions from this Court addressing what damages are available to parents of an unhealthy, abnormal child, bringing a claim for wrongful birth and medical malpractice. The trial court, claiming judicial economy, suggested to the parties it was procedurally preferable to grant defendants/appellees' motion for partial summary judgment, and let this matter pass to this Court as a Certified Interlocutory Order on a Petition for Certiorari. STANDARD OF REVIEW ¶3 An appeal on summary judgment comes to this Court as a de novo review. Carmichael v. Beller, ISSUE ON APPEAL ¶4 The issue raised on appeal is what damages are available in this medical malpractice case. The only proposition in Defendants/Appellees' motion for partial summary judgment was the Shulls' damages, based on Appellees' alleged malpractice, are limited to the medical cost of continuing the pregnancy, offset by the cost of termination the Shulls would have elected to have, had they known of their child's exposure to the CMV infection. The district court sustained the motion, limiting damages to that amount. ANALYSIS ¶5 This Court has previously addressed the question of wrongful conception in three separate cases. The first case was Morris v. Sanchez, 1987 OK 110, 746 P.2d 184, where this Court found the birth of a healthy child does not constitute a legal harm for which damages are recoverable.2 The next case was Goforth v. Porter Medical Associates, Inc., 1988 OK 63, 755 P.2d 678, where again, this Court found that the birth of a normal, healthy child is not a compensable damage. However, this Court held: Morris, however, should not, and must not, be interpreted as precluding a claim for other forms of damages that may arise out of the negligent performance of sterilization operations. Insofar as the petition in this case alleges negligence and actual, ordinary damages arising out of the alleged negligence, to-wit: $2,000.00 in medical expenses incurred as result of the unplanned pregnancy, we are of the opinion that the petition adequately states a claim for which relief may be granted. Goforth v. Porter Medical Associates, Inc., 1988 OK 63, ¶5, 755 P.2d 678, 680. Finally, in Wofford v. Davis, 1988 OK 112, ¶7, 764 P.2d 161, 162, this Court again disallowed recovery of damages for raising a healthy child, but allowed for damages that may arise out of the negligent performance of sterilization operations. These cases dealt with normal, healthy children, born after failed attempts at sterilization. ¶6 To reach that result we relied upon the Kansas case, Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 (KS 1985). We again turn to another Kansas case for guidance. In Arche v. Unites States of America, Department of the Army, 247 Kan. 276, 798 P.2d 477 (KS 1990), the Kansas Supreme Court was requested to answer two questions. First, did Kansas law recognize a cause of action for wrongful birth of a permanently handicapped child, and if so, what is the extent of damages which may be recovered upon proper proof. The Kansas Court held: Wrongful birth plaintiffs typically desire a child and plan to support the child. Such support is, of course, the obligation of all parents. It is therefore reasonable to deny those normal and forseeable (sic) costs which accrue to all parents. We hold that those expenses caused by the child's handicaps may be recovered, but not those expenses natural to raising any child. (citations omitted) Arche v. Unites States of America, Department of the Army, 247 Kan. 276, 282-283 798 P.2d 477, 481 (KS 1990). The Kansas Court then addressed the plaintiff's emotional damages and found that such damages were not allowable in this type of medical malpractice action. They held: We have thus far held that visibility of results as opposed to visibility of the tortious act does not give rise to a claim for emotional damages. The child's injury in this case occurred without human fault during development of the fetus; the parents were not aware of the injury at the time. The parents in Schmeck3 were responsible for their disabled child and suffered emotional distress because of the disablement, but were denied recovery for emotional distress. We see no reason why a wrongful birth case should be distinguished. We therefore hold that damages for emotional distress of the parents are not recoverable in a wrongful birth case. Arche v. Unites States of America, Department of the Army, 247 Kan. 276, 283, 798 P.2d 477, 482 (KS 1990). Finally, the Kansas Supreme Court addressed the issue concerning allowable damages, and over what period of time such damages may be recovered. The Kansas Court found that recovery may be had only for the period of time of the child's life expectancy or until the child reaches the age of majority, whichever is the shorter period. Arche at 247 Kan. 276, 291, 798 P.2d 477, 486. ¶7 In Liddington v. Burns, 916 F. Supp. 1127, 1130-1131(W.D.Okla. 1995), the U.S. District Court, sitting in diversity, addressed the issue before us. Applying Oklahoma law, the court found that Oklahoma would recognize an action for wrongful birth. As to damages that court held: Neither party briefed the issue of what elements of damages are recoverable in a wrongful birth action. Certainly the extraordinary medical expenses and other pecuniary losses proximately caused by the negligence are recoverable. Arche v. Unites States of America, Department of the Army, 247 Kan. 276, 798 P.2d 477 (1990). Just as certainly, the normal and foreseeable costs of raising a normal, healthy child are not recoverable. Morris v. Sanchez, 746 P.2d 184 (Okla.1987). Liddington v. Burns, 916 F. Supp. 1127, 1133 (W.D.Okla. 1995). ¶8 Subsequent to the birth of the child in the instant case, the Oklahoma State Legislature passed 63 O.S. Supp. 2008 § 1-741.114 that recognized wrongful birth actions but does not allow a parent, or other person who is legally required to provide for the support of a child, to seek economic or noneconomic damages because of a condition that existed at the time of the child's birth, based on a claim that a person's act or omission contributed to the mother not terminating the pregnancy. This Statute, however, was passed after the birth of the child in the instant matter, and it does not affect our holding in the instant case following this Court's holding in Welch v. Armer, 1989 OK 117, ¶27, 776 P.2d 847, 850, where we held "[t]he general rule in Oklahoma is that statutes, and amendments, are to be construed to operate only prospectively unless the Legislature clearly expresses a contrary intent." In Sudbury v. Deterding, 2001 OK 10, ¶19, 19 P.3d 856, 860, this Court held: Remedial or procedural statutes may operate retrospectively only where they do not create, enlarge, diminish or destroy vested rights. A substantive change that alters the rights or obligations of a party cannot be viewed as solely a remedial or procedural change and cannot be retrospectively applied. The statute at hand does acknowledge the tort of wrongful birth and does not show any retrospective intent. The statute is a substantive change to the law which alters the rights and obligations of parties. It cannot be considered merely a remedial or procedural change, and therefore, cannot be retrospectively applied. ¶9 We adopt the findings and the rationale, in Arche and Liddington and hold that in any case arising prior to the enactment of 63 O.S. § 1-741.11 in 2008, in a wrongful birth action alleging medical malpractice, the measure of damages allowable is the extraordinary medical expenses and other pecuniary losses proximately caused by the negligence. There is no cause of action for emotional distress5 as the child's injury in this case occurred without human fault during development of the fetus, and the parents were not aware of the injury at the time. Loss of consortium is also not allowable in the instant matter as Oklahoma law does not provide for this type of damage in the instant case.6 Finally, recovery may be had only for extraordinary expenses, not the normal and foreseeable costs of raising a normal, healthy child, for the period of time of the child's life expectancy or until the child reaches the age of majority,7 whichever is the shorter period. CERTIORARI PREVIOUSLY GRANTED;CERTIFIED INTERLOCUTORY ORDERREVERSED AND REMANDED ¶10 CONCUR: WATT, EDMONDSON, REIF, COMBS, GURICH, JJ. ¶11 DISSENT: KAUGER (I DISSENT TO THE PREMATURE CONSIDERATION OF THIS QUESTION OF FIRST AND LAST IMPRESSION. THIS CASE SHOULD GO TO TRIAL AND THEN ANY PARTY MAY APPEAL THE VERDICT BASED UPON A COMPLETED RECORD.), J., TAYLOR (JOINS KAUGER, J.), C.J., WINCHESTER (JOINS KAUGER, J.), J. ¶12 NOT PARTICIPATING: COLBERT, V.C.J. FOOTNOTES 1 CMV is a common virus and a member of the herpes virus family. 2 Morris v. Sanchez, 1987 OK 110, ¶12, 746 P.2d 184, 188, citing Byrd v. Wesley Medical Center, 237 Kan. 215, 699 P.2d 459 at 467-468 (KS 1985). 3 Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263 ( KS 1982). 4 This Statute was passed and became effective November 1, 2008. It has since been repealed and again passed by the Oklahoma Legislature and is now numbered 63 O.S. Supp.2010, § 1-741.12 5 In Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, ¶11-12, 916 P.2d 241, 249, this Court adopted a direct victim approach to emotional distress similar, but even more far reaching than that of Kansas' witness approach. The plaintiff must be a victim, not a bystander, directly involved in the incident, damaged from directly viewing the incident and a close family relationship must exist between the plaintiff and the party whose injury gave rise to plaintiff's mental anguish. 6 In Walker v. St. Louis-San Francisco Ry. Co., 1982 OK 25, ¶25, 646 P.2d 593, 600, this Court recognized that a spouse is entitled to bring a derivative action for loss of consortium, that is as a result of a direct injury to a spouse. In Williams v. Hook, 1990 OK 136, ¶10-11, 804 P.2d 1131, 1136, the right to parental consortium was extended to children of a totally disabled parent. 7 This Court has previously held that a parent has a legal duty to support his or her child until the child reaches the age of majority. Holleyman v. Holleyman, 2003 OK 48, ¶7, 78 P.3d 921, 924; State ex rel. Dept. of Human Services v. Baggett, 1999 OK 68, ¶ 22, 990 P.2d 235, 244.

97583023-8dbc-4b84-8791-7f642b60ed54

Wilson v. Fallin

oklahoma

Oklahoma Supreme Court

WILSON v. FALLIN2011 OK 76Case Number: 109652Decided: 09/01/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SENATOR JIM WILSON, Petitioner,v.MARY FALLIN, Governor of the State of Oklahoma, KRIS STEELE, Speaker of the Oklahoma House of Representatives, BRIAN BINGMAN, President Pro Tempore of the Oklahoma State Senate, PAUL ZIRIAX, Secretary of the Oklahoma State Election Board, Respondents. PROCEEDING TO REVIEW SENATE REDISTRICTING ACT ¶0 Petitioner seeks review of the State Senate Redistricting Act of 2011, pursuant to the section 11C, Article V of the Oklahoma Constitution. Petitioner alleges the Act does not comply with the apportionment formula in section 9A, Article V of the Oklahoma Constitution. This Court finds that the petitioner has failed to show that the State Senate Redistricting Act of 2011 does not comply with the provisions of section 9A. STATE SENATE REDISTRICTING ACT OF 2011 COMPLIES WITHSECTION 9A, ARTICLE V, OKLAHOMA CONSTITUTION. Mark Hammons, Oklahoma City, Oklahoma, for petitioner Senator Jim Wilson.Neal Leader, Nancy Zerr, Assistant Attorneys General, for respondents Governor Mary Fallin and Secretary Paul Ziriax.Robert McCambell, Lee Slater, Oklahoma City, Oklahoma, for respondent President Pro Tempore Brian Bingman.Andrew Lester, Edmond, Oklahoma, for respondent Speaker Kris Steele. TAYLOR, C.J. ¶1 This is a proceeding to review the State Senate Redistricting Act of 2011 (the Redistricting Act), Enrolled Senate Bill 821, sections 2 through 6, signed by the Governor on May 20, 2011. Two threshold first impression legal questions are presented: (1) What part, if any, of the apportionment formula in section 9A, Article V of the Oklahoma Constitution ¶2 Oklahoma State Senator Jim Wilson, a resident of Cherokee County, Oklahoma, filed a petition pursuant to section 11C for review of the Redistricting Act. ¶3 Senator Wilson alleges that the Redistricting Act does not comply with section 9A because it "fails to create Senate districts which as nearly as possible provide for compactness, political units, historical precedents, economic and political interests." Senator Wilson does not explicitly identify every district in the Redistricting Act that he contends is not in compliance with section 9A but claims that he has identified such districts by the maps provided in his appendix. ¶4 Senator Wilson points out what he considers the primary differences in the Redistricting Act and his proposed apportionment plan. He states that the largest district in the Redistricting Act has 78,943 persons and the largest district in his plan has 78,929 persons-a difference of fourteen persons- ¶5 Respondent Paul Ziriax, Secretary of the Oklahoma State Election Board, filed a preliminary statement, contending that the review of legislative apportionment provided in section 11C is limited in section 11D to a review for "compliance with the formula as set forth in this Article." Secretary Ziriax questions whether there is a manageable standard for adjudication of challenges brought under section 11C because a large part of section 9A was declared unconstitutional in Reynolds v. State Election Bd., 233 F. Supp. 323, 329 (W.D.Okla. 1964), and then reinstated in an emasculated form in Ferrell v. State ex rel. Hall, 339 F. Supp. 73, 74 (W.D.Okla. 1972). Secretary Ziriax asks this Court to address whether this proceeding is a superficial contest between the Legislature's redistricting map and Senator Wilson's proposed redistricting map. ¶6 Respondent Brian Bingman, President Pro Tempore of the Oklahoma State Senate, in his recommendations to this Court, also advances threshold issues: what is the proper standard or test for determining whether apportionment legislation complies with Article V as required by section 11D; whether and to what extent section 9A is viable after being declared unconstitutional in Reynolds v. State Election Bd. and then declared partially constitutional in Ferrell v. State ex rel. Hall; whether population is the only mandatory criterion in section 9A; which issues presented herein are justiciable; and what is the Court's role in this review proceeding. The President Pro Tempore also suggests a procedure for taking evidence in this proceeding, if needed. Respondent Kris Steele, Speaker of the Oklahoma House of Representatives, filed a report adopting the procedure suggested by the President Pro Tempore. ¶7 Responding to the respondents' suggestions, Senator Wilson admits that he is not asserting a claim under the Voting Rights Act, 42 U.S.C. §§ 1973, et seq.; states there is no need for a briefing schedule in this proceeding; and opposes any order issued by this Court that would allow the Election Board to prepare for the 2012 election under the Redistricting Act. The President Pro Tempore asks to file a brief on issues relevant to the 2012 election in reply to Senator Wilson. ¶8 We agree with the respondents that we must address, for the first time, the application of sections 9A, 11C, and 11D of the apportionment provisions in Article V of the Oklahoma Constitution. Sections 9A, 10A, and 11A through 11E were added to Article V by State Question 416, Referendum Petition No. 142, adopted at a special election held May 26, 1964. The 1963 Legislature proposed State Question 416 in Senate Joint Resolution No. 4, 1963 Okla. Sess. Laws, p. 736, to establish constitutional reapportionment formulas for both houses. In the joint resolution, the Legislature resolved that county-based apportionment, with consideration given to "the federal analogy, history, economics, custom, territory, and similar and related factors," was a proper method of providing adequate and fair representation of groups with like political, social, and economic interests and of avoiding divesting segments of the population of their representation. ¶9 Section 9A provides for forty-eight state senate districts to be based on the most recent federal decennial census. It provides that each of the nineteen most populous counties constitutes a senate district and the fifty-eight less populous counties be joined into twenty-nine two-county districts. It further provides that population, compactness, area, political units, historical precedents, economic and political interests, contiguous territory, and other factors are to be considered to the extent feasible in apportioning the state senate. Section 9A fixes the term of the senate office as four years with one-half of the senators elected at each general election. ¶10 Section 11C authorizes any qualified voter to petition the Supreme Court for review of any apportionment by the Legislature or the Apportionment Commission ¶11 When the county-based apportionment formula in section 9A was submitted to a vote of the people, many states' legislative districts were based on units of local government and rural/urban distinctions. Several states, including Oklahoma, had failed to reapportion and redistrict for decades. Many states were involved in litigation challenging the legislative apportionment. The state courts had declined to resolve apportionment complaints, considering them to be nonjusticiable political matters, and many state apportionment schemes were challenged in federal court. Then the United States Supreme Court handed down its opinion in Baker v. Carr, ¶12 Two years after Baker v. Carr, the opinion in Reynolds v. Sims, ¶13 Oklahoma had been involved in apportionment litigation before a three-judge panel in the federal district court for several years when the United States Supreme Court handed down its opinion in Reynolds v. Sims. In light of Reynolds v. Sims, the three-judge panel ruled that the legislative apportionment provisions in section 9A are null and void. Reynolds v. State Election Bd., 233 F. Supp. 323 (1964). The three-judge panel specifically left standing only the provision in section 9A that established the forty-eight senatorial offices with the four-year terms and the provision that one-half of the senatorial offices will be elected every two years. 233 F.Supp at 329. The three-judge panel further ruled that the provisions in sections 11A through11E, establishing the Apportionment Commission and providing for Supreme Court review and exercise of original jurisdiction, do not conflict with the federal constitution and are valid. Id. In 1972, another three-judge panel in Ferrell v. State of Oklahoma, 339 F. Supp. 73, 76 (1972), reconsidered the validity of the provisions in section 9A and ruled that it is permissible, but not mandatory, for the Legislature to consider the factors of compactness, area, political units, historical precedents, economic and political interests, and contiguous territory set out in section 9A in apportioning legislative districts. As will be discussed, we reach a conclusion that is similar in several respects to the conclusions reached in Reynolds v. State Election Bd. and Ferrell v. State of Oklahoma. ¶14 Although we have discussed the apportionment provisions of Article V in deciding a challenge to congressional redistricting, Alexander v. Taylor, ¶15 As to section 9A, it is clear that the county-based apportionment formula is rendered a nullity by the basic constitutional standard that state legislative districts must be based on equality in the total population under the Equal Protection Clause of the Fourteenth Amendment and Reynolds v. Sims, ¶16 The presumption that legislation is constitutional and should be sustained against challenge where it is possible to do so applies to constitutional provisions. Local 514 Transport Workers Union of America v. Keating, ¶17 The invalid language defining the county-based apportionment formula is presumed to be severable, In re Application of Okla. Dept. of Transp., at ¶31, and no party argues otherwise. Accordingly, we find the language defining the county-based apportionment formula in section 9A to be severable without the necessity of a severability analysis. ¶18 The remaining language in section 9A provides a population appropriation formula for apportioning senate districts. A population apportionment formula necessarily requires equality in the state's total population so that the forty-eight senate districts have only minimal deviation from the ideal district population determined by the most recent Federal Decennial Census. However, we recognize that local interest factors such as compactness, political units, and economic and political interests are considered under the totality of the circumstances principle in racially-motivated gerrymander and minority-vote dilution claims under the federal Voting Rights Act, 42 U.S.C. §§ 1973,et seq., which are not presented herein. ¶19 The opinions in Reynolds v. Sims and its progeny do not affect sections 11C and 11D. Notwithstanding, we consider sections 11C and 11D because they control this proceeding. Section 11C reads: Any qualified elector may seek a review of any apportionment order of the Commission, or apportionment law of the legislature, within sixty days from the filing thereof, by filing in the Supreme Court of Oklahoma a petition which must set forth a proposed apportionment more nearly in accordance with this Article. Any apportionment of either the Senate or the House of Representatives, as ordered by the Commission, or apportionment law of the legislature, from which review is not sought within such time, shall become final. The court shall give all cases involving apportionment precedence over all other cases and proceedings; and if said court be not in session, it shall convene promptly for the disposal of the same. Section 11D reads: Upon review, the Supreme Court shall determine whether or not the apportionment order of the Commission or act of the legislature is in compliance with the formula as set forth in this Article and, if so, it shall require the same to be filed or refiled as the case may be with the Secretary of State forthwith, and such apportionment shall become final on the date of said writ. In the event the Supreme Court shall determine that the apportionment order of said Commission or legislative act is not in compliance with the formula for either the Senate or the House of Representatives as set forth in this Article, it will remand the matter to the Commission with directions to modify its order to achieve conformity with the provisions of this Article. ¶20 Reading section 11C in conjunction with section 11D, ¶21 In his initial filings, Senator Wilson asked for evidentiary and briefing schedules, asserting that no deference may be given to the senate districts in the Redistricting Act and that the respondents must bring forth evidentiary support for the districts. This assertion is incorrect. Every statute is presumed constitutional. Local 514 Transport Workers Union of America v. Keating, ¶22 Turning to the challenge to the Redistricting Act, Senator Wilson effectively agrees that the apportionment therein is based on population, but he complains that it was drawn with little or no regard for compactness and local political and economic interests. Senator Wilson admits that the district with the most population (78,943) in the challenged act includes only fourteen more people than his most populous district with 78,929. He also admits that the least populous district in both the challenged act and his proposed plan has 77,350 people. Senator Wilson makes no showing that the challenged act does not comply with the population formula in section 9A. ¶23 We conclude that the population apportionment formula set out in section 9A, Article V, Oklahoma Constitution, remains in effect. We also conclude that a review proceeding authorized by section 11C, Article V, Oklahoma Constitution, is limited by section 11D, Article V, Oklahoma Constitution, to a review for compliance with the population apportionment formula set out in section 9A, Article V, Oklahoma Constitution, as a matter of law. We find the petitioner has failed to clearly demonstrate that the presumed constitutional State Senate Redistricting Act of 2011 does not comply with section 9A, Article V of the Oklahoma Constitution. We determine and hold that the State Senate Redistricting Act of 2011 complies with the population apportionment formula set out in section 9A, Article V of the Oklahoma Constitution. STATE SENATE REDISTRICTING ACT OF 2011 COMPLIES WITHSECTION 9A, ARTICLE V, OKLAHOMA CONSTITUTION. Taylor, C.J., Colbert, V.C.J., (by separate writing), and Kauger, Watt, Winchester, Edmondson, Reif, Combs, and Gurich, JJ., concur. FOOTNOTES 1 All section references are to Article V of the Oklahoma Constitution unless otherwise stated. 2 Senator Wilson initiated this proceeding as a qualified elector, not in his official capacity as a state senator. Section 11C, Article V of the Oklahoma Constitution authorizes any qualified elector to petition the Supreme Court for a review of apportionment legislation. 3 The Honorable Mary Fallin, Governor of the State of Oklahoma, moved to be dismissed. The Governor's motion to dismiss is rendered moot by our resolution of this proceeding. 4 Senator Wilson explicitly identifies his senate district 3 as a redrawn district in the Redistricting Act that does not comply with section 9A. Senator Wilson alleges that the Redistricting Act unnecessarily divided three counties in drawing district 3 and removed the heart of the Cherokee Nation from district 3. 5 Based on the 2010 United States census, Oklahoma has a population of 3,751,351 persons. United States Census 2010, 2010 Census Data, hppt://2010.census.gov/2010census/data/ (last visited Aug. 2, 2011). Dividing the state's total population by the total senate districts, the ideal senate district would contain 78,153 persons. 6 Secretary Ziriax also asks this Court to address whether tribal boundary lines are a proper consideration, particularly since the Cherokee Nation's Indian country is a patchwork quilt collection of trust land and restricted allotments scattered throughout fourteen counties. Because in this special review proceeding before this Court, pursuant to § 11C, art. V, Okla. Const., we conclude that the constitutional apportionment formula must be based on population and that the Redistricting Act complies with the population-based formula, we need not address whether tribal areas or historic precedents should be considered in apportionment. 7 Section 11A establishes the Apportionment Commission and provides for it to act whenever the Legislature refuses to make the apportionment within ninety legislative days after convening the first regular session of the Legislature following the Federal Decennial Census. Amended in 2010, a seven member Bipartisan Commission on Legislative Apportionment replaced the Apportionment Commission. State Question 748, Legislative Referendum 349, adopted November 2, 2010. 8 In addition to Reynolds, in 1964, the Supreme Court struck down the legislative apportionment of several other states, such as Maryland in Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595 (1964); Virginia in Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964); and Colorado in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964), for failing to be population-based contrary to the Equal Protection Clause of the Fourteenth Amendment. Also, the Reynolds opinion noted that suits had been instituted challenging the apportionments in thirty-four states, 84 S. Ct. at 1378-1379, n. 30, and that it had remanded several cases to the courts below for reconsideration in light of Baker v. Carr, listing Scholle v. Hare, 369 U.S. 429, 82 S. Ct. 910, 8 L. Ed. 2d 1 (challenging a Michigan apportionment), and WMCA, Inc. v. Simon, 370 U.S. 190, 82 S. Ct. 1234, 8 L. Ed. 2d 430 (challenging a New York apportionment). 9 We note that the United States Supreme Court has recognized some flexibility in drawing state legislative districts based on equality in the total population. Abate v. Mundt, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 (1971). In doing so, the Court rejected application of local interests to justify deviations from population for apportionment of state legislative districts. The Court recognized that "deviations from population equality must be justified by legitimate state interests" and that "state interests offered to justify deviations from population equality" must be carefully scrutinized. 403 U.S. at 185, 91 S. Ct. at 1906-1907. 10 General rules of statutory construction are used in construing the constitution such as the rule that provisions in pari materia should be construed together. Cowart V. Piper Aircraft Corp., 1983 OK 66, ¶4, 665 P.2d 315, 317. 11 We hereby deny Senator Wilson's motion for a briefing schedule and evidentiary hearing, even though after filing the motion, he admitted there was no need for a briefing schedule. COLBERT, V.C.J., with whom Watt, Combs, and Gurich, JJ. join, concurring ¶1 By an election held May 26, 1964, the people of Oklahoma added a formula for redistricting in Section 9A of Article V of the Oklahoma Constitution. The formula provided for nineteen Senate districts with one Senator from each of the most populous counties along with twenty-nine two-county districts from the fifty-eight less populous counties. It also listed several social, geographic, and political factors to be considered by providing that "[i]n apportioning the State Senate, consideration shall be given to population, compactness, area, political units, historical precedents, economic and political interests, contiguous territory, and other major factors, to the extent feasible." Okla. Const. Art. V, § 9A. ¶2 Less than one month after that election, the United States Supreme Court handed down Reynolds v. Simms, 377 U.S. 533 (1964), which established that in order to pass constitutional muster, population rather than location must be the predominate consideration in the apportionment of electoral districts. Reynolds specifically rejected an approach in which population is the only factor, noting that "[m]athmatical exactness or precision is hardly a workable constitutional requirement." 377 U.S. at 577. The Reynolds Court acknowledged the legitimate function of such factors as compactness, area, political units, historical precedents, and economic and political interests when it stated: A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering. . . . Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State. Id. at 578-579. ¶3 By today's decision, this Court strikes only the county-based aspect of the Section 9A formula to meet the requirement of Reynolds that population be the controlling criterion in evaluating a redistricting plan. The remaining "population apportionment formula" includes the Section 9A factors of "compactness, area, political units, historical precedents, economic and political interests, contiguous territory, and other major factors." ¶4 Today's decision recognizes that factors other than population can be the tool for achieving voter equality as well as the tool for its circumvention. The problem is not in the tool. Rather it is in its application. That is why those factors continue to be utilized by states in their constitutional and statutory redistricting schemes1 and by state and federal courts in evaluating whether a redistricting plan unconstitutionally furthers invidious discrimination. See, e.g., Voinovich v. Quilter, 507 U.S. 146 (1993)(applying several of the factors listed in Section 9A to a claim of racial gerrymandering). The proper focus of redistricting and judicial review of redistricting plans is voter equality rather than mathematical uniformity of population among the districts because "the achieving of fair and effective representation for all citizens is . . . the basic aim of legislative apportionment." Reynolds, 377 U.S. at 565-566. ¶5 In this matter, no claim of gerrymandering based on race or economic status has been asserted. The claim is that political gerrymandering was involved in the redistricting. In 2004, the United States Supreme Court in Vieth v. Jubelirer, 541 U.S. 267, held all claims of political gerrymandering to be nonjusticiable in federal court because no judicially discernable and manageable standards for adjudicating such claims exist. The clear implication of Vieth is that if a state court has judicially discernable and manageable standards, it is justified in adjudicating claims of political gerrymandering. Those standards, however, are derived from a states statutory and/or constitutional scheme for redistricting. By contrast, claims of racial or economic gerrymandering are subject to strict scrutiny under the 14th Amendment. ¶6 In this political gerrymandering claim, the problem is that the fact specific factors listed in Section 9A are not sufficient to provide discernable and manageable standards by which this Court may adjudicate a claim of political gerrymandering in an Article V, Section 11C review proceeding. However, the factors are sufficient to guide the District Court in making the fact determinations necessary to determine whether political gerrymandering has occurred or whether some form of voter discrimination has been perpetrated in contravention of the 14th Amendment or the Voting Rights Act. FOOTNOTES 1 New Jersey, for example, has a special commission to establish Congressional redistricting. N.J. Const. Art.II, § 2. Iowa has very specific protections against gerrymandering. Iowa's redistricting standards mandate the use of a set of factors that include population, compactness, area, political units, political interests, and contiguous territory. Iowa Code § 42.4.

91e2e555-577d-4a0b-ba55-251e7237063e

City of Tulsa v. Bank of Oklahoma, N.A.

oklahoma

Oklahoma Supreme Court

CITY OF TULSA v. BANK OF OKLAHOMA, N.A.2011 OK 83Case Number: 109449Decided: 10/11/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CITY OF TULSA; and KATHY TAYLOR, Mayor of the City of Tulsa, Plaintiffs/Appellees, BANK OF OKLAHOMA, N.A., Defendant, v. BANK OF OKLAHOMA, N.A.; MARILYN BLEDSOE; ROBERT P. SUTTON; CHERYL L. SUTTON; CYNTHIA L. SUTTON; NANCY DAVIS; MICHAEL E. STAGGS; REGINA A. STAGGS; ROBERTA L. DAVIS; DOUGLAS W. McLAIN; MICHAEL K. ASHLEY; LAURA MANTOOTH; and ARTHUR ADAMS, Defendant/Appellants. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY HONORABLE DEBORAH C. SHALLCROSS, DISTRICT JUDGE. ¶0 Qui Tam action was brought against the City of Tulsa alleging the settlement of the Great Plains loan by the City and the Bank of Oklahoma, which was approved by the Tulsa County District Court, was improper. Declaratory action was had that included the Qui Tam applicants as defendants. The district court found a plausible unjust enrichment claim against the City of Tulsa. This matter was appealed and retained by this Court. We find the unjust enrichment claim to be unviable, and the Statute of Limitations would bar the unjust enrichment claim against the City. RULING OF TRIAL COURT REVERSED AND CAUSE REMANDED Anthony P. Sutton, Marlin Ray Davis, SUTTON, DAVIS & STAGGS, P.A., Tulsa, Oklahoma, for Defendants/Appellants. Adam Keith Marshall, Cori D. Powell, Robert B. Sartin, BARROW & GRIMM, P.C., Tulsa, Oklahoma, for Plaintiffs/Appellees Qui Tam Taxpayers. Frederic Griffin Dorwart, Michael J. Medina, Tulsa, Oklahoma, for Defendant. COMBS, J. PROCEDURAL AND FACTUAL BACKGROUND ¶1 On November 30, 2000, the City Council of Tulsa decided to encourage the initiation of new direct nonstop airline service to the business centers of the East and West coasts, and voted to approve a Memorandum of Understanding between the Tulsa Industrial Authority (TIA) and the City of Tulsa which would convey to the TIA certain real property known as Air Force Plant Number 3 (Property). The purpose of the transfer was to allow TIA to mortgage the Property to the Bank of Oklahoma (BOK) in support of a non-recourse loan by the Bank to TIA so that TIA could, in turn, make a $30,000,000.00 aggregate loan (Great Plains Loan) to Great Plains Airlines, Inc. (Great Plains). This transfer was to allow the Tulsa Airports Improvement Trust (TAIT) to enter into a Support Agreement, pursuant to which TIA, in the event of a default would have the option of selling the Property to TAIT which would be done by direction of the BOK. Upon exercise of such option, the TIA would sell, transfer and convey the property to TAIT, to satisfy the outstanding loan balance. ¶2 This transaction contemplated by the City of Tulsa Memorandum and approved by the City Council, the Board of Trustees of TAIT , and the Board of Trustees of TIA was consummated and publicly announced on December 21, 2000. The City Council approved a Quit Claim Deed on December 4, 2000, from the City of Tulsa to TIA, recorded on December 27, 2000, in the Tulsa County Land Records. BOK made a loan of $30,000,000 to TIA, TIA made the Great Plains Loan to Great Plains, and TIA assigned the loan (without recourse) to the Bank. TIA mortgaged the Property to BOK to secure BOK's loan to TIA but did not file the mortgage in the Land Records of Tulsa County, Oklahoma. TIA, TAIT and BOK entered into the Support Agreement on December 21, 2000, pursuant to which TIA was granted the Default Remedies in the event Great Plains failed to achieve certain business development milestones or defaulted on the Great Plains loan. TIA irrevocably appointed BOK to act as its attorney-in-fact to enforce the promises made by TAIT in the Support Agreement. ¶3 Great Plains failed to achieve its business development milestones and subsequently, on or about March 21, 2004, defaulted under the terms of the Great Plains Loan in accordance with the terms of the Support Agreement leaving a balance of approximately seven million dollars owed to the Bank. On or about June 22, 2004, BOK declared trigger events, as defined by the Support Agreement which would require TAIT to purchase the mortgaged property, were actionable. Thereafter, the Federal Aviation Administration (FAA) advised TAIT that TAIT should not use any of TAIT's funds in violation of the FAA Revenue Use Policy (Policy and Procedures for the Use of Airport Revenue, Federal Register February 16, 1999, at 7696, and following, "Revenue Use Policy"). TAIT asserted that all TAIT funds were Airport Revenue per the FAA Revenue Use Policy and refused to perform its obligation, under the Support Agreement, to purchase the Property and the Great Plains Loan. ¶4 As a result of TAIT not purchasing the property and the Great Plains Loan, TIA, by and through its attorney-in-fact, Bank brought suit against TAIT and its former attorney, J. Richard Studenny, and Studenny and Associates, a Professional Corporation (Studenny) in an action styled Tulsa Industrial Authority v. Tulsa Airports Improvement Trust, City of Tulsa, J. Richard Studenny and Studenny and Associates, in the district court of Tulsa County, Oklahoma, in case number CJ-2004-06124. TAIT responded to the lawsuit and alleged the Support Agreement was unlawful and an unenforceable contract because TAIT could not purchase the Great Plains Loan and Property by reason that all of TAIT's funds were airport revenues and such purchases would violate the FAA Revenue Use Policy. ¶5 On January 5, 2007, the district court entered an Order determining certain TAIT assets were not airport revenues as alleged by TAIT. Subsequent thereto, the parties entered into an Interim Settlement Agreement dated February 26, 2007, whereby the parties agreed to make a cooperative effort to determine the extent to which TAIT had revenues that were not considered airport revenues subject to the FAA Revenue Use Policy or FAA grant restrictions which would assist the parties in attempting to reach a settlement of the lawsuit. During the course of its investigation, BOK identified additional revenues and assets that may not be airport revenues subject to the restriction imposed by the FAA Revenue Use Policy or FAA grant restrictions (Non-Restricted Assets). However, these Non-Restricted Assets are, in fact, airport revenues (as determined by the FAA) and, if used to satisfy the obligation to the bank, TAIT could be subject to severe FAA penalties which would result in serious consequences to TAIT and Airport operations. During the course of this investigation, in 2008, BOK alleges it identified a claim against the City of Tulsa arising out of the facts and circumstances of the subject transaction. ¶6 In March of 2008, BOK provided to TAIT and the City of Tulsa a second amended petition BOK intended to file on TIA's behalf in the Lawsuit. This petition added the City of Tulsa as a defendant in the lawsuit, and alleged the City of Tulsa, through the actions of its employees and/or agents, had been unjustly enriched by the subject transaction. As of March 31, 2008, the balance due to BOK was the sum of $11,648,294.00. The City of Tulsa, TAIT and their legal counsel evaluated the legal merits of BOK's petition and specifically the BOK's claim against the City of Tulsa, the City of Tulsa's potential exposure to liability, the costs of defending the claim, as well as, the overall risk to the City of Tulsa and/or airport if an adverse judgment for the full amount owed to BOK was entered against the City of Tulsa or TAIT. ¶7 On June 25, 2008, TIA filed the amended petition as a Second Amended Petition which added the City of Tulsa as a defendant in the lawsuit. The Second Amended Petition was properly served to the City of Tulsa. The City denied TIA's allegations in its Answer to the Second Amended Petition filed June 25, 2008, however, the City sought settlement of the lawsuit because it determined the claim asserted by TIA/BOK was a potential colorable claim exposing the City to a judgment in excess of $11,648,294.00, and significant legal fees in defending the lawsuit. ¶8 On June 26, 2008, (three days after filing their answer) the City, TAIT, TIA and BOK executed a Settlement Agreement which provided the City of Tulsa would pay BOK $7,100,000.00 to settle the lawsuit. The Settlement Agreement provided, in the event the City of Tulsa received a Qui Tam Demand pursuant to 62 O.S. 2001, § 372 et. seq., the City of Tulsa would file a petition seeking a judicial declaration that its actions executing the Settlement Agreement and transferring the Settlement Payment were authorized under Oklahoma law. Additionally, pursuant to the terms of the Settlement Agreement, if the trial court determined the City of Tulsa's actions were not authorized under Oklahoma law, BOK was required to refund the entire Settlement Payment and the parties would proceed with the lawsuit. ¶9 On or about July 8, 2008, the City of Tulsa received a Qui Tam Demand from the Taxpayers asserting that the Settlement Agreement and/or Settlement Payment was not authorized by Oklahoma Law. The Taxpayers asserted the City of Tulsa had no legal obligation, and will never have the legal obligation, to pay the underlying claim in the lawsuit, and that the Taxpayers of the City of Tulsa will be significantly prejudiced if corrective action was not taken to reverse the course. At the time the City received the Taxpayers' Qui Tam Demand, the City of Tulsa had not made the Settlement Payment. ¶10 On July 14, 2008, and July 15, 2008, the City received what Taxpayers referred to as Supplements to Taxpayers' Qui Tam Demand from Taxpayers' counsel. On July 17, 2008, the City received a letter from Taxpayers' counsel which added two additional Taxpayers. On August 4, 2008, the City transferred $7.1 million to BOK pursuant to the Settlement Agreement. On August 6, 2008, the City received another letter from the Taxpayers, dated July 30, 2008, which repeated the Taxpayers' prior demands. ¶11 The City of Tulsa and Kathy Taylor, Mayor of the City of Tulsa, filed a Declaratory Judgment Action against the Bank of Oklahoma and multiple individual defendants (Taxpayers) on July 14, 2008. Plaintiffs filed an Amended Petition for Declaratory Judgment on July 22, 2008. The Defendant Taxpayers filed an Answer, Cross-Claim, Counter-Claim, and a Third-Party-Petition on August 5, 2008. Plaintiffs answered Defendant Taxpayers' claims on August 18, 2008. Defendant Bank of Oklahoma answered Plaintiffs' petition and Defendant Taxpayers' claims on August 25, 2008. Prior to the August 10, 2010, hearing on the Motions for Summary Judgment at issue, the matter was fully litigated with numerous trial court and appellate court proceedings. On October 3, 2008, the City filed a Motion for Partial Summary Adjudication against Taxpayers. This Motion of Partial Summary Adjudication was granted on February 26, 2009, and a journal entry memorializing the Court's order was settled on June 12, 2009. ¶12 As part of the order, the Court made Findings of Fact and Conclusion of law that were specifically incorporated and made part of the trial court's final order. The trial court ruled as to the limited issue presented in the Motion for Partial Summary Judgment, the effect of 62 O.S. 2001, § 373, and how it pertained to the facts of the case. The trial court determined the pertinent facts to be that, on June 26, 2008, the City, the Tulsa Airports Improvement Trust, the Tulsa Industrial Authority and BOK executed a Settlement Agreement, which provided that the City would pay BOK $7,100,000.00 million to settle the lawsuit filed in Tulsa Industrial Authority v. Tulsa Airports Improvement Trust, et al. Id. ¶13 The trial court concluded, pursuant to 62 O.S. 2001, § 372, the Declaratory Judgment Action filed by the City and the Mayor of the City of Tulsa was a proper response to the Taxpayers' Qui Tam Demand. The trial court further found the Taxpayers' had no right to recover a Qui Tam Penalty. On October 8, 2008, the trial court granted the City's Motion for Partial Summary Adjudication. ¶14 The City of Tulsa and Kathy Taylor, Mayor of the City of Tulsa, asked the trial court to determine, as a matter of law, the settlement agreement was a lawful contract executed by the City, and the settlement payment made pursuant to the settlement agreement was a lawful expenditure of public funds. The taxpayers asked the trial court to determine, as a matter of law, the Mayor lacked the legal authority to enter into the Settlement Agreement, and the payment of money to the Bank of Oklahoma pursuant to the settlement agreement was an illegal transfer of public funds made pursuant to an unlawful settlement agreement and a fraudulent judgment. The Taxpayers also argued the City did not pursue the Taxpayers' claim in good faith, and their Qui Tam status should be recognized. ¶15 In granting the City's motion for summary judgment, the trial court found, first the settlement agreement was a lawful settlement of a colorable claim against the City, and the settlement payment was a lawful expenditure of funds. Second, the City properly responded to the taxpayers' Qui Tam demands by initiating the declaratory judgment action and presenting, in good faith, the Taxpayers' challenges to the Settlement Agreement and Settlement Payment. The trial court denied the Taxpayers' counter-motion for summary judgment and denied the Taxpayers' request to reconsider the February 26, 2009, Order granting partial summary judgment. ¶16 Taxpayers filed this appeal and a motion to retain by the Supreme Court which was granted. Taxpayers' question six is dispositive of all issues in this case and reads1: 6. Is an unjust enrichment claim actionable against a municipality? If so, is compliance with GTCA required as a condition precedent to recovering on such a claim? STANDARD OF REVIEW ¶17 This Court has previously identified, in a case similar to the one at Bar, the standard of review from a summary judgment in a Qui Tam action: Summary relief issues stand before us for de novo examination. All facts and inferences must be viewed in the light most favorable to the non-movant. Just as nisi prius courts are called upon to do so, so also appellate tribunals bear an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant. Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor. State ex rel. Fent v. State ex rel. Oklahoma Water Resources Board, 2003 OK 29, ¶14, 66 P.3d 432, 440. The appellate standard of review of a trial court's grant of summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. On review, this Court will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. All inferences and conclusions to be drawn from the evidentiary materials will be viewed in the light most favorable to the nonmoving party. Id. This Court will reverse the grant of summary judgment when it appears from the evidentiary materials that the material facts concerning issues raised in the case are conflicting or, if the material facts are disputed, reasonable persons in the exercise of fair and impartial judgment might reach a different conclusion from those facts. Buck's Sporting Goods, Inc. of Tulsa v. First Nat.l Bank & Trust Co. of Tulsa, 1994 OK 14, ¶11, 868 P.2d 693, 697-698. In a summary judgment review an appellate court has the same power as the trial court to resolve any disputed issues of law. U.S. Mortgage v. Laubach, 2003 OK 67, ¶31, 73 P.3d 887, 900. Questions three and six presented by the Qui Tam litigants form the basis of our decision in the instant matter. ¶18 In the present matter TAIT is public trust under 60 O.S. 1991, §§ n176-180.3 created by Trust Indenture dated as of March 7, 1969, as amended, for the use and benefit of the City of Tulsa under the authority of and pursuant to the provisions of the Act and other applicable statutes of the State. 60 O.S. 1991, § 179, Trustee-Agency of State-Liability for acts reads: The trustee, or trustees, under such an instrument or will shall be an agency of the state and the regularly constituted authority of the beneficiary for the performance of the functions for which the trust shall have been created. No trustee or beneficiary shall be charged personally with any liability whatsoever by reason of any act or omission committed or suffered in the performance of such trust or in the operation of the trust property; but any act, liability for any omission or obligation of a trustee or trustees, in the execution of such trust, or in the operation of the trust property, shall extend to the whole of the trust estate, or so much thereof as may be necessary to discharge such liability or obligation, and not otherwise. This statute shows that the trustor, in this matter the City of Tulsa, can be responsible for "any act, liability for any omission or obligation of a trustee or trustees, in the execution of such trust."2 This generally applies to governmental functions or proprietary functions of the city. Economic development is not such a function.3 UNJUST ENRICHMENT ¶19 The City of Tulsa settled the instant claim on the basis of unjust enrichment. This Court has previously held "unjust enrichment arises not only where an expenditure by one person adds to the property of another, but also where the expenditure saves the other from expense or loss. One is not unjustly enriched, however, by retaining benefits involuntarily acquired which law and equity give him absolutely without any obligation on his part to make restitution." McBride v. Bridges, 1950 OK 25¶8, 215 P.2d 830,832, 202 Okl. 508. Before a party will be entitled to recover for unjust enrichment, however, "there must be enrichment to another, coupled with a resulting injustice." Teel v. Public Service Co. of Oklahoma, 1985 OK 112, ¶23, 767 P.2d 391, 398 (superceded by statute on other grounds). Any enrichment to the City of Tulsa had long been lost as a result of the failure of Great Plains Airlines. Tulsa is not unjustly enriched, by retaining benefits involuntarily acquired, which law and equity give it absolutely without any obligation on its part to make restitution. An unjust enrichment claim is not a viable cause of action in the instant matter as the City of Tulsa was not unjustly enriched by a failed business venture. To find a valid unjust enrichment claim in such a matter would have a chilling effect on economic development.4 Cities might not seek economic development in such actions if there is a chance of being sued for unjust enrichment should the economic enterprise fail for reasons outside the municipality's control. The City of Tulsa had no control over the FAA revenue determination. ¶20 Even if a cause of action for unjust enrichment existed the current claim is out-of-time. The limitation period for the underlying proposed unjust enrichment claim in the instant case is governed by 12 O.S. Supp. 2002 §95 which provides: Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, but not afterwards: . . . 3. Within two (2) years: An action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud-the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. In the present matter, Great Plain defaulted on its loans in 2004. BOK sued TAIT that same year. BOK knew it suffered an identifiable loss or injury on the non-recourse loans on July 22, 2004. Any cause of action against the City of Tulsa would have accrued from the date of the initial default. The City of Tulsa was not added as a defendant in the lawsuit until March 2008 when it was determined that TAIT's revenues could not be accessed without serious FAA penalties. BOK alleged it did not determine it had a plausible cause of action for unjust enrichment until it was determined it could not collect monies from TAIT. This occurred approximately four years after the initial lawsuit was filed. ¶21 This Court has previously held in Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK 140 ¶22, 840 P.2d 619, 624, regarding the statute at hand that: . . . The statute is, however, subject in certain instances to a "discovery rule." The discovery rule provides that the limitations period does not begin to run until the date the plaintiff knew or should have known of the injury. (Citations omitted) Furthermore, this Court again held in Stephens v. General Motors Corp. 1995 OK 114 ¶8, 905 P.2d 797, 799, that: According to 12 O.S. Supp. 1993 §95, an action must be commenced within the relevant period "after the cause of action shall have accrued" or it is barred. The statute of limitations begins to run when the cause of action accrues. A cause of action accrues when a litigant could first maintain an action to a successful conclusion. Sherwood Forest No. 2 Corp. v. City of Norman, 632 P.2d 368, 370 (Okl. 1980); Oklahoma Brick Corp. v. McCall, 497 P.2d 215, 217 (Okl. 1972). Additionally, this court has held "that for the purposes of 12 O.S. 1981 §95 Third, a negligence claim accrues when any injury to the plaintiff, for which an action could proceed is certain and not merely speculative. M.B.A. Constr., Inc. v. Roy J. Hannaford Co., Inc., 818 P.2d 469, 470 (Okl. 1991). In the present matter, BOK knew it suffered an identifiable loss or injury on July 22, 2004. It did not pursue any action on this non-recourse loan against the City of Tulsa until March of 2008, almost four years after it knew of its identifiable loss or injury. The Tulsa Airport Improvement Trust is an Oklahoma Public Trust and is an agency of the State of Oklahoma and a regularly constituted agency of its beneficiary, the City of Tulsa, Oklahoma. The land on which the mortgage was given (Air Force Plant 3) was quit-claimed by the City of Tulsa to TIA. The Support Agreement in the instant case required TAIT, not the City of Tulsa, to purchase the property in case of the triggering event. According to the support agreement, the loan was to be made to "promote the general public health, safety, and welfare of the City, including the economic benefits of expanding the tax base and providing employment opportunities . . . " ¶22 BOK was, at all times, fully aware this agreement was for the benefit of the City of Tulsa when it made its non-recourse loan. BOK could have, and should have, added the City of Tulsa as a defendant at the initiation of this lawsuit. The mere fact that TAIT being bound by FAA regulations was the event that caused BOK to consider adding the City of Tulsa as a defendant in this action is illusory. The discovery rule provides the limitations period does not begin to run until the date the plaintiff knew or should have known of the injury. BOK knew of its injury on July 22, 2004, but did not add the City of Tulsa as a defendant until March of 2008. According to 12 O.S.Supp. 2002, § 95, BOK had two years to add the City of Tulsa as a defendant in "an action for injury to the rights of another, not arising on contract," as the City of Tulsa was not a party to the Loan Agreement that bound the parties in the instant action. Therefore, the settlement agreement in the instant matter should be set aside as void. TAXPAYERS ARE NOT ENTITLED TO QUI TAM PENALTIES ¶23 The taxpayers in the instant case are not entitled to recover any Qui Tam penalties as the City of Tulsa did not fail to respond to the Qui Tam action in the instant matter as required by 62 O.S. Supp. 2008, § 372 which provides: Every officer of the state and of any county, township, city, town or school district, who shall hereafter order or direct the payment of any money or transfer of any property belonging to the state or to such county, city, town or school district, in settlement of any claim or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for the state or any such county, city, town or school district, by any officer thereof, known to such officer to be fraudulent or void, and every person, having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent person in any manner injured thereby, and shall be furthermore jointly and severally liable to the state, county, city, town or school district affected, for triple the amount of all such sums of money so paid, and triple the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of the state or such county, city town or school district, or of any resident taxpayer thereof, pursuant to Section 373 of this title; provided, however, no action for personal liability shall lie against any such officer for a transaction approved in good-faith reliance on advice of legal counsel for the public entity authorizing the transaction or which has been submitted to a court of competent jurisdiction for determination of legality. Furthermore 62 O.S. Supp. 2000, §373 provides: Upon the refusal, failure, or neglect of the proper officers of the state or of any county, township, city, town, or school district, after written demand signed, verified and served upon them by ten resident taxpayers of the state or such county, township, city, town, or school district, to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to the state, or such county, township, city, town or school district, paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent, or void contract made, or attempted to be made, by any of its officers for the state or any such county, township, city, town, or school district, or for the penalty provided in the preceding section, any resident taxpayer of the state or such county, township, city, town, or school district affected by such payment or transfer after serving the notice aforesaid and after giving security for cost, may in the name of the State of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the State, county, township, city, town, or school district might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half (½) the amount of the money and one-half (½) the value of the property recovered in any action maintained at the expense of a resident taxpayer under this section, shall be paid to such resident taxpayer as a reward. If all claims stated by the resident taxpayers in the written demand are determined in a court of competent jurisdiction to be frivolous, the resident taxpayers who signed such demand and who are parties to the lawsuit in which such claims are determined to be frivolous shall be jointly and severally liable for all reasonable attorney fees and court costs incurred by any public officer or officers or any other person alleged in such demand to have paid out, transferred, or received any money or property belonging to the state, or such county, township, city , town or school district in pursuance of any alleged unauthorized, unlawful, fraudulent, or void claim paid or contract or conveyance made, or attempted to be made, by such officer or officers. ¶24 In the present matter the City acted properly in protecting the rights of the Qui Tam petitioners by filing the underlying declaratory action. The officers of the City of Tulsa were acting under the guidance of legal counsel and properly submitted the settlement agreement to the District Court of Tulsa County for judicial determination of the legality of the settlement. This Court has recently addressed this same issue in Tulsa Industrial Authority v. City of Tulsa 2011 OK 57, ¶14, ___ P.3d ____ where we held: In summary, a qui tam taxpayer's § 373 right to intervene is based upon a public body's failure to seek recovery of the public funds issue as specified in § 373. A public body's right to prevent intervention of the qui tam taxpayer in its declaratory judgment proceeding is based upon its diligent prosecution therein of the qui tam taxpayer's claim of illegality. . . No request had been made as to possible frivolous claims and therefore we decline to address any possible issue as to attorney fees under 62 O.S. Supp. 2000, § 373. ¶25 In the case at Bar, we find that the settlement of the unjust enrichment claim was untimely and unviable; however, the City of Tulsa properly responded to the Qui Tam action and therefore the Qui Tam applicants cannot recover any penalty. The Qui Tam taxpayers were included as parties in the instant matter and were allowed to brief and argue their standpoint to the district court. The City of Tulsa at no time prevented the Qui Tam parties from presenting their case, but rather added them as party-defendants to the declaratory action. CONCLUSION ¶26 In the present matter, the settlement was not based on a contract, but rather under the equitable theory of unjust enrichment to the City of Tulsa. The City of Tulsa, at all times, presented the settlement issues to the District Court of Tulsa County. The Judgments Against Municipalities Act does not apply. Therefore, the sinking funds requirement also does not apply. However, since we find the unjust enrichment claim to be unviable and the Statute of Limitations would bar the unjust enrichment claim against the City, we remand the instant matter back to the District Court of Tulsa County to direct the repayment of the settlement funds from BOK back to the City of Tulsa. As this finding disposes of the instant matter, we decline to address the other issues presented by the Qui Tam applicants. RULING OF TRIAL COURT REVERSED AND CAUSE REMANDED ¶27 CONCUR: TAYLOR, C.J., WATT, WINCHESTER, EDMONDSON, COMBS, JJ. ¶28 CONCUR IN PART; DISSENT IN PART: COLBERT, V.C.J., KAUGER (JOINS REIF, J.), GURICH (JOINS REIF, J.), JJ. ¶29 DISSENT: REIF (BY SEPARATE WRITING - WITH WHOM KAUGER AND GURICH, JJ., JOIN), J. FOOTNOTES 1 The unaddressed questions are as follows: 1. Must payment of a money judgment entered against a municipality, upon any theory, utilizing the sinking fund, comply with the Judgments Against Municipalities Act (JAMA) Okla. Stat. tit. 62, §§361-363? 2. May a city circumvent the sinking fund statutory requirements that money judgments against the city be paid only from "sinking funds" (Okla. Stat. tit. 62, §§365.5 and 435) by "investing" in a money judgment against itself with city operating (non-sinking) funds pursuant to Okla. Stat. tit. 62, §348.1? 3. If municipalities can circumvent sinking fund statutes through Okla. Stat. tit. 62, §348.1, and pay on asserted claims that are merely "plausible" and not those determined to be factually and legally owed, and the transfer not tested by compliance with the Governmental Tort Claims Act (GTCA) or JAMA, are citizens protected against the unlawful taxation disallowed by the Supreme Court in Wood v. Phillips, 1923 OK 668, 219 P. 646? 4. Where the Bylaws of a municipality do not specifically address a mayor's express authority to enter into settlement agreements, does a strong mayoral form of government under Okla. Stat. tit. 11, §§ 11-101, 106 and 108 require city council approval in order to bind a municipality to a settlement agreement and judgment? 5. Does Article X, §§ 14, 15, and 26 of the Oklahoma Constitution require a debt to be, in fact, owed by a municipality before an agreement to pay the claim is required or, as in the present case, need a claimant only present a "plausible" claim? 7. Does the City's action violate binding precedence and render illusory the qui tam statutes? 2 McKosy v. Town of Talihina 1977 OK CIV APP 27, ¶¶13-14, 581 P.2d 482, 485-486, applied this Statute to the proprietary functions of a city. In the present matter economic development is not a proprietary function of the City of Tulsa and is inapplicable in the instant matter. 3 Board of County Commissioners v. Warram, 1955 OK 198, ¶45 285 OK 1034, 1041, held that debt created by a public trust shall never become an obligation of the beneficiary. 4 For a review of Oklahoma law concerning economic development using public funds see, Burkardt v. City of Enid, 1989 OK 45, 771 P.2d 608; State ex rel. Brown v. City of Warr Acres, 1997 OK 117, 946 P.2d 1140. REIF, J.: dissenting, with whom Kauger and Gurich, JJ., join. ¶1 This case concerns a claim by the Bank of Oklahoma against the City of Tulsa that arose out of the Bank's financing of Great Plains airline service at the City's municipal airport. The controversy over this claim is whether the City of Tulsa had a sufficient stake in the financing of Great Plains that would justify the City's settlement of the Bank's claim. In my opinion, the undisputed material facts surrounding the financing arrangement disclose that the City had such a stake and the trial court properly granted summary judgment approving the settlement of Bank's claim. ¶2 Although not a party to the financing contracts, the City did transfer title to real property at the airport to the Tulsa Industrial Authority for the purpose of securing a loan from the Bank to finance Great Plains' service. As a contingency for repayment, the Tulsa Airport Improvement Trust agreed to purchase the collateral real property and Great Plains' loan from the Bank in the event of default by Great Plains. Great Plains eventually defaulted. The Airport Improvement Trust did not fulfill its purchase agreement because the Federal Aviation Administration advised the Trust it could not use "airport revenue" for such a purpose. Litigation then ensued with the Industrial Authority and Bank of Oklahoma aligned against the Airport Improvement Trust. The Bank would later conclude that the City had been "unjustly enriched" by the Bank's financing assistance to Great Plains and the failure of the Airport Improvement Trust to purchase the collateral property and outstanding loan. Regardless of the merit of the unjust enrichment aspect of the Bank's claim, the Bank nonetheless held a mortgage on the property the City provided to the Industrial Authority as collateral for the Bank's financial commitment to the Great Plains financing plan. ¶3 The City of Tulsa had a clear and substantial equitable interest in the collateral property to protect, despite having transferred legal title to the Industrial Authority. Preference to redeem the property from the Bank's mortgage, as well as the release of the mortgage itself, constituted valuable consideration for the City's settlement of Bank's claim. Such redemption and release returned the property as an asset for further development of the airport by the City and the Industrial Authority. Bringing complex litigation to an end was further consideration to support the settlement of Bank's claim. The decision to pursue such ends in the public interest is a matter that lies peculiarly within the governing judgment of the elected officials of the City of Tulsa. The remedy for taxpayers who disagree with the exercise of such judgment by their elected officials lies at the ballot box, not in the Courts. ¶5 I would affirm the summary judgment approving the settlement.

cc88570a-57a3-4208-88a7-4abed54a8caa

Hubbard v. Kaiser-Francis Oil Co.

oklahoma

Oklahoma Supreme Court

HUBBARD v. KAISER-FRANCIS OIL COMPANY2011 OK 50Case Number: 105701Decided: 06/07/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. VICK ALLEN HUBBARD, Plaintiff/Appellant,v.KAISER-FRANCIS OIL COMPANY, a Delaware corporation, TEXAS SOUTHWEST GAS, L.L.C., a Texas corporation, and GBK CORPORATION, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALSDIVISION IV ¶0 Vick Allen Hubbard, Plaintiff, appeals from a post-judgment order of the district court granting litigation costs and attorney fees to Kaiser-Francis Oil Company, Texas Southwest Gas, L.L.C., and GBK Corporation, Defendants. The district court relied on offers of judgment made pursuant to CERTIORARI PREVIOUSLY GRANTED;OPINION OF THE COURT OF CIVIL APPEALS VACATED;JUDGMENT OF THE DISTRICT COURT AFFIRMED. Laurence L. Pinkerton, Judith A. Finn, PINKERTON & FINN, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant. Keith F. Sellers, SELLERS LAW FIRM, and Frederic G. Dorwart, Erica A. Dorwart, Paul DeMuro, Michael J. Medina, FREDERIC DORWART LAWYERS, Tulsa, Oklahoma, for Defendants/Appellees. COMBS, J.: ¶1 This cause presents questions of first impression in Oklahoma law: (1) whether a judgment in favor of a defendant triggers the application of ¶2 In a 2-1 decision, the Court of Civil Appeals (COCA), Division IV, affirmed the district court's award of costs and attorney fees to Defendants pursuant to offers of judgment made by Defendants under BACKGROUND ¶3 On May 5, 2004, Hubbard filed suit against Defendants for breach of an oil and gas lease, and gas purchase contract regarding a royalty interest owned by him. On May 25, 2004, Kaiser-Francis Oil Company filed an offer of judgment pursuant to ¶4 Defendants filed a motion for summary judgment which was granted and entered on March 28, 2005. Hubbard appealed. Thereafter, Defendants filed a joint motion to recover their costs and fees based on Hubbard's failure to obtain a judgment for more than the amount of Defendants' § 1101.1(B) offers. On or around July 6, 2005, the parties reached an agreement on the amount of litigation costs and attorney fees to be paid by Hubbard. Hubbard paid this amount and Defendants withdrew their motion. ¶5 As a result of the appeal, the case was remanded and ordered to include a judgment roll from a related case to be filed with the district court. DISCUSSION ¶6 The issues in this case revolve around the construction of 1. Prevailing Defendants Are Entitled to Seek Fees and Costs Under12 O.S. Supp. 2002, § 1101.1(B). ¶7 As recognized by this Court in Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, ¶ 13 and n. 7, 152 P.3d 880, 885 and n.7, we have never addressed the issue of whether a prevailing defendant, i.e., a defendant who obtains a judgment in his favor, may recover fees and costs pursuant to a § 1101.1(B) offer of judgment.5 Although not precedential, it should be noted that the Oklahoma Court of Civil Appeals has held several times that a prevailing defendant may recover its attorney fees and costs pursuant to § 1101.1(B).6 Resolution of this issue depends upon our interpretation of the statutory phrase "the judgment awarded the plaintiff." ¶8 Generally, statutes are to be interpreted in accordance with their plain, ordinary meaning according to the import of the language used. In re Certification of Question of State Law, 1977 OK 16, 560 P.2d 195. Nevertheless, where the literal meaning of a statute would result in great inconvenience or lead to absurd consequences the Legislature could not have contemplated, we are bound to presume such consequences were not intended, and must adopt a construction which will promote the ends of justice and avoid the absurdity. Cox v. Dawson, 1996 OK 11, ¶ 20, 911 P.2d 272, 281; Oliver v. City of Tulsa, 1982 OK 121, ¶ 25, 654 P.2d 607, 612; Taylor v. Langley, 1941 OK 67, ¶ 0, 112 P.2d 411, 412. ¶9 Hubbard correctly notes that no judgment was awarded him in this case because the district court granted Defendants' motions for summary judgment and awarded judgment in their favor. Indeed, Hubbard argues that because he was not awarded a judgment, the Defendants' § 1101.1(B) offers of judgment are invalid or ineffective. Hubbard claims the statute is triggered only when the plaintiff is the prevailing party in the underlying action. ¶10 Hubbard asserts that only a judgment awarded to a plaintiff can trigger a § 1101.1(B) award of fees and costs. If we accept that argument, we would be constrained to hold that the Legislature intended to advance fees and costs to a defendant where the plaintiff recovers only $1 but not where the defendant receives an outright judgment in its favor. Such an absurd result would not further the purpose of § 1101.1(B) which is to encourage settlement by creating the possibility of fee-shifting. ¶11 Hubbard urges us to follow the United States Supreme Court opinion of Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S. Ct. 1146 (1981), which interpreted Rule 68 of the Federal Rules of Civil Procedure.7 Delta involved the application of Rule 68 to an unsuccessful plaintiff pursuing claims of employment discrimination. The Court determined that Rule 68, by its plain language, does not apply to a case in which judgment is entered against the plaintiff-offeree and in favor the defendant-offeror. ¶12 F.R.C.P. Rule 68 is fundamentally different from § 1101.1(B), as admitted by Hubbard, in that Rule 68 only applies to costs, not attorney fees, and it does not permit counter-offers by plaintiffs. These differences are critical. ¶13 The purpose of § 1101.1(B) is to "encourage judgments without protracted litigation" by "provid[ing] additional incentives to encourage a plaintiff to accept a defendant's offer to confess judgment" and to encourage a defendant "to offer an early confession of judgment [to] avoid further increases in costs which may be incurred [for] trial preparation." Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, ¶ 13, 152 P.3d 880, 885. Section 1101.1(B) encourages a meaningful exchange between the parties by allowing a plaintiff to make a counter-offer and reallocate the risk of incurring fees and costs back to the defendant. F.R.C.P. 68 does not permit such an exchange. ¶14 We see no reason to distinguish between an outright defense judgment and a plaintiff's judgment for less than the amount of a defendant's offer of judgment. A plaintiff who lost a case entirely should not be in a better position than a plaintiff who obtained only a small judgment. Thus, we hold the Legislature intended that a judgment entered in favor of a defendant can be the basis for an award of attorney fees and costs under § 1101.1(B). The trial court correctly awarded such fees and costs to Defendants in this case. II. Defendants Were Not Required to Renew theirOffers of Judgment on Remand. ¶15 The next issue raised by Hubbard is whether Defendants' offers survived the appeal and subsequent remand of the case concerning the March 28, 2005, summary judgment. Hubbard maintains that because Defendants did not renew their offers post-remand, they cannot seek the fees and costs they incurred after the remand. Hubbard's requirement that Defendants' offers should have been renewed is unsupported by statute or case law. ¶16 In Oklahoma, there is but one judgment for each cause of action. Oklahoma City Urban Renewal Authority v. Oklahoma City, 2005 OK 2, ¶ 10, n. 16, 110 P.3d 550, 557, n.16; FDIC v. Tidwell, 1991 OK 119, ¶ 5, 820 P.2d 1338, 1341. A judgment is the final determination of the rights of the parties in an action. 12 O.S. 2001, § 681. While there was a judgment in this case on March 28, 2005, that judgment was remanded back for further proceedings. On November 8, 2007, the district court again granted summary judgment on all claims included in the offers of judgment in favor of the Defendants. Hubbard appealed this second summary judgment on December 7, 2007. On September 16, 2008, the Court of Civil Appeals affirmed the November 8, 2007, judgment and mandate was issued on October 9, 2008. Hubbard's argument would require the recognition of at least two judgments in this case - the March 28, 2005 summary judgment order that was remanded and the November 8, 2007, summary judgment order which has become final. ¶17 There is nothing in the record to show that Defendants' offers were vacated when the original judgment in favor of Defendants was apparently vacated and remanded. Remand after the original appeal did not constitute refiling of this case and the district court resumed jurisdiction of the case upon remand. As we stated in Boston Ave., supra, "the plain language of § 1101.1(B)(3) provides that there must be some type of final adjudication, i.e., conclusion to the claims included in the offer of judgment for an attorney fee and cost recovery to be triggered." Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, ¶ 15, 152 P.3d at 885. The term "final adjudication" and § 1101.1(B)(3) "date of judgment" can only mean when the "action or claim or claims included in the offer of judgment" becomes res judicata. The doctrine of res judicata "teaches that when the appeal time expires a decision under this rubric becomes impervious to reconsideration and hence binding and conclusive upon the parties."8 In Hubbard v. Kaiser-Francis et al. (Court of Civil Appeals, 2008, unpublished opinion, No. 105,352), the Court of Civil Appeals affirmed the November 8, 2007, summary judgment on September 16, 2008. A rehearing was not requested nor was a petition for certiorari filed pursuant to Rule 1.179 of the Supreme Court Rules. Therefore, final adjudication occurred when the mandate was issued on October 9, 2008. Accordingly, Defendants are permitted to recover their remaining reasonable litigation costs and attorney fees incurred subsequent to July 7, 2005, through the date of the mandate, October 16, 2008.9 ¶18 We are required to analyze the enforcement of defendant's offer of judgment under unusual procedural circumstances. It is undisputed that the offer was neither accepted within ten days as required, nor was a counteroffer of judgment made within ten days. Nor was a subsequent timely offer of judgment made by either plaintiff or defendant. There is nothing in the plain text of III. Defendants' Offers Were Reasonable. ¶19 Hubbard also argues on appeal that the offers of judgment made by the Defendants, were unreasonably low and, therefore, sham offers. In the present case the offer made by the Defendants was to pay $275.00 per each of seven causes of action. ¶20 The purpose of § 1101.1 is to "encourage a plaintiff to accept a defendant's offer to confess judgment" and to encourage a defendant "to offer an early confession of judgment [to] avoid further increases in costs which may be incurred [for] trial preparation". See, Boston Ave. Mgmt., Inc. v. Associated Res., Inc., supra, ¶ 13,: Dulan v. Johnston, ¶21 In this case, applying a "reasonable" test to these facts, we would consider the facts demonstrated in the record. (1) Defendant had prevailed on summary judgment in a similar case raising identical issues on the same group of wells, CJ-2000-04355 (Tulsa County); (2) Defendants had prevailed before the Oklahoma Tax Commission on similar legal issues on the same group of wells [OTC No. P-94-154]; (3) Defendant had settled a statewide class action, which allegedly bound Hubbard as a class member, covering the issues raised in the present case (Kouns v. Kaiser-Francis Oil Co., CJ-98-45, Dewey County); and (4) the Defendants offer of $275.00 per cause of action. ¶22 As we have said in this opinion, the purpose of § 1101.1(B) is to encourage settlement by creating the possibility of fee-shifting. The purpose is not to create a trial tactic. It is intended as a realistic method of seeking a resolution of the parties' controversy. It is not the intent of § 1101.1(B) to allow a defendant to make an unreasonable offer of judgment and to, therefore, recover its reasonable litigation costs and reasonable attorney fees merely because it prevailed. Such a result would be absurd because it would not further the purpose of § 1101.1(B) which is to encourage settlement. ¶23 We find the offer in the present case to have been reasonable. CONCLUSION ¶24 The COCA, in a 2-1 decision, affirmed the order of the district court granting Appellants motions for litigation costs and attorney fees pursuant to CERTIORARI PREVIOUSLY GRANTED;OPINION OF THE COURT OF CIVIL APPEALS VACATED;|JUDGMENT OF THE DISTRICT COURT AFFIRMED. ¶25 CONCUR: TAYLOR, C.J., COLBERT, V.C.J., EDMONDSON, REIF, COMBS, GURICH, JJ. ¶26 CONCUR IN PART; DISSENT IN PART: KAUGER, WATT (JOINS WINCHESTER, J.), WINCHESTER (BY SEPARATE WRITING), JJ. FOOTNOTES 1 That statute provides, in pertinent part: B. Other actions. 1. After a civil action is brought for the recovery of money or property in an action other than for personal injury, wrongful death or pursuant to Chapter 21 of Title 25 or Section 5 of Title 85 of the Oklahoma Statutes, any defendant may file with the court, at any time more than ten (10) days prior to trial, an offer of judgment for a sum certain to any plaintiff with respect to the action or any claim or claims asserted in the action. An offer of judgment shall be deemed to include any costs and attorney fees otherwise recoverable unless it expressly provides otherwise. If an offer of judgment is filed, the plaintiff or plaintiffs to whom the offer of judgment is made shall, within ten (10) days, file: a. a written acceptance or rejection of the offer, or b. a counteroffer of judgment, as described in paragraph 2 of this subsection. If a plaintiff fails to file a timely response, the offer of judgment shall be deemed rejected. The fact an offer of judgment is made but not accepted or is deemed rejected does not preclude subsequent timely offers of judgment. 2. In the event a defendant files an offer of judgment, the plaintiff may, within ten (10) days, file with the court a counteroffer of judgment to each defendant who has filed an offer of judgment and the claim or claims which are the subject thereof. If a counteroffer of judgment is filed, each defendant to whom a counteroffer of judgment is made shall, within ten (10) days, file a written acceptance or rejection of the counteroffer of judgment. If a defendant fails to file a timely response, the counteroffer of judgment shall be deemed rejected. The fact a counteroffer of judgment is made but not accepted or is deemed rejected does not preclude subsequent counteroffers of judgment if subsequent offers of judgment are made. 3. If no offer of judgment or counteroffer of judgment is accepted and the judgment awarded the plaintiff is less than one or more offers of judgment, the defendant shall be entitled to reasonable litigation costs and reasonable attorney fees incurred by the defendant with respect to the action or the claim or claims included in the offer of judgment from and after the date of the first offer of judgment which is greater than the judgment until the date of the judgment. Such costs and fees may be offset from the judgment entered against the offering defendant. 4. If no offer of judgment or counteroffer of judgment is accepted and the judgment awarded the plaintiff is greater than one or more counteroffers of judgment, the plaintiff shall be entitled to recover the reasonable litigation costs and reasonable attorney fees incurred by the plaintiff with respect to the action or the claim or claims included in the counteroffer of judgment from and after the date of the first counteroffer of judgment which is less than the judgment until the date of the judgment. Such costs and fees may be added to the judgment entered in favor of the plaintiff. 2 It is unclear from the record what issues Hubbard asserted during the first appeal. 3 In Hubbard v. Kaiser-Francis et al. (Court of Civil Appeals 2008 unpublished opinion, No. 105,352). 4 In footnote 1 of Defendants' Supplemental Joint Combined Motion for Attorney's Fees And Brief in Support (Case No. CJ-2004-275; Grady County, State of Oklahoma), Defendants state "[b]ecause of the fee agreement, the defendants do not request any fees and expenses incurred prior to July 7, 2005." On page 1 in the main body of the Motion they request "recovery of their legal fees and reasonable litigation costs incurred subsequent to July 7, 2005". 5 5 In Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, ¶ 13 and n. 7, 152 P.3d 880, 885 and n.7, we stated: Thus, a decision as to whether an actual defendant's judgment after a trial on the merits or a summary judgment in favor of a defendant that could be considered a final adjudication in respect to the actual action or the claim or claims included in the offer of judgment would trigger the cost and attorney fee provisions of § 1101.1(B)(3) will have to await another day in a matter where the case's circumstances necessitate determination of the question. That day has arrived. 6 Commercial Financial Services, Inc. v. J.P. Morgan Securities, Inc., 2007 OK CIV APP 8, 152 P.3d 897; Hopkins v. Byrd, 2006 OK CIV APP 132, 146 P.3d 864, and Fuller v. Pacheco, 2001 OK CIV APP 39, 21 P.3d 74. 7 7Pursuant to Rule 68 of the Federal Rules of Civil Procedure, if a plaintiff rejects a defendant's formal settlement offer, and if "the judgment finally obtained by the offeree is not more favorable than the offer," the plaintiff "must pay the costs incurred after the making of the offer." 8 Depuy v. Hoeme, 1989 OK 42, ¶10, 775 P.2d 1339, 1343. 9 See Footnote 4 of this opinion. 10 See ¶ 8 of this opinion. WINCHESTER, J., with whom WATT, J., joins, CONCURRING IN PART and DISSENTING IN PART. ¶1 I concur in part and dissent in part to the majority opinion. I must dissent to that portion of the opinion which injects a new standard of reasonableness into the offer of judgment statute, 12 O.S. Supp. 2002, § 1101.1(B). ¶2 The majority acknowledges that the Legislature did not statutorily impose a reasonableness test on the proposed offer. Nevertheless, the majority asserts that such a requirement must have been intended because the Legislature set forth in the statute that any fees and costs to be awarded pursuant to the offer must be reasonable. However, reference to the statute's assessment of "reasonable litigation costs and reasonable attorney fees" to the prevailing party fails to support the proposition that the Legislature intended the trial court to evaluate all offers of judgment for reasonableness.1 Requiring the trial court to determine the soundness of an offer of judgment unwittingly places the court in the subjective position of evaluating the evidence, credibility of the witnesses and trial strategy from the position of advocate for one of the parties. ¶3 To inject the trial court into the determination of what is a fair offer of judgment defeats the clear intent of the statute which is to place the responsibility clearly on the lawyers shoulders. Failure to impose an express reasonableness standard here does not conversely mean that the Legislature intended to permit unreasonable offers. This Court is duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them. Mehdipour v. State Dept. of Corrections, 2004 OK 19, ¶22, 90 P.3d 546, 555. The Legislature could have imposed a duty on the courts to assess and weigh each offer for reasonableness but it elected not to do so. We must honor this decision and have confidence counsel can fully evaluate their own position without court interference. FOOTNOTES 1 Reliance on the Court of Civil Appeals case of Fuller v. Pacheco, 2001 OK CIV APP 39, 21 P.3d 74, is misplaced. That case dealt with the reasonableness of an award of attorney fees and not whether the offer of judgment supporting the award of fees was reasonable.

d7548e94-bf2a-4237-8486-3648b018422b

Evans & Assoc. Utility Svcs. V. Espinoza

oklahoma

Oklahoma Supreme Court

EVANS & ASSOC. UTILITY SERVICES v. ESPINOSA2011 OK 81Case Number: 108017Decided: 10/04/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. EVANS & ASSOCIATES UTILITY SERVICES, and ZURICH AMERICAN INSURANCE COMPANY, Petitioners,v.RUBEN ESPINOSA and THE WORKERS' COMPENSATION COURT, Respondents. CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION III Honorable Cherri Farrar, Workers' Compensation Judge ¶0 The petitioner, Ruben Espinosa, sought permanent partial disability benefits for injuries to his hands, arms, and shoulders. The Workers' Compensation Court awarded benefits, but a three-judge en banc panel reduced the award to account for Espinosa's previously awarded benefits for injuries to other parts of his body. The Court of Civil Appeals vacated the panel, determining that both the trial court and the panel misapplied the applicable statute, 85 O.S. 2001 §22(7). We granted certiorari to resolve a conflict between two Court of Civil Appeals' opinions with differing interpretations of the limitations provided in §22(7). We hold that when the Workers' Compensation Court awards compensation for an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 §22(7), the sum of all permanent partial disability awards is limited to a total of 100% or 520 weeks (10 years) for any individual, but awards against the Multiple Injury Trust Funds, or awards for amputations and surgeries are excluded from both of these limitations. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED;EN BANC PANEL OVERRULED; TRIAL COURT OVERRULED;CAUSE REMANDED WITH INSTRUCTIONS. Timothy E. Lurtz, Oklahoma City, Oklahoma, for Petitioners.John C. Forbes, Midwest City, Oklahoma, for Respondent Espinosa. KAUGER, J: ¶1 We granted certiorari to resolve a conflict between the Court of Civil Appeals differing interpretations1 of the Workers' Compensation statute 85 O.S. 2001 §22(7).2 This statute provides the schedule of compensation for permanent and temporary disability and subsection (7) limits the sum of all cumulative awards for an individual employee's lifetime. It provides in pertinent part: . . .the sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided in the Workers' Compensation Act. ¶2 One division of the Court of Civil Appeals had interpreted the exclusion of awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, to apply to both the 100% limitation and the 520 week limitation. In this cause, the appellate court determined that the exclusion applies to the 100% limitation, but not the 520 week limitation. We hold that when the Workers' Compensation Court awards compensation for an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 §22(7),3 the sum of all permanent partial disability awards is limited to a total of 100% or 520 weeks for any individual, but awards against the Multiple Injury Trust Funds, or awards for amputations and surgeries are excluded from both limitations. FACTS ¶3 The petitioner, Evans & Associates Utility Services (employer) employed the respondent, Ruben Espinosa (Espinosa/employee) as a manual laborer. During the course of his employment, Espinosa suffered several injuries which resulted in multiple Workers' Compensation awards. The first award was in 2006, in which the employee was awarded permanent partial disability benefits for 27% binaural hearing loss totaling 89.1 weeks of benefits.4 The second award was in July of 2009, in which the employee's lungs were determined to be 6% impaired for which he received 30 weeks of compensation.5 ¶4 The third award, on August 11, 2009, was for injuries Espinosa sustained to his right leg, knee, neck or cervical spine, back, and lumbar spine. He was determined to be 20% impaired to the right leg and knee, 10% to the neck and 40% to the back for a total of 305 weeks of benefits. Apparently the back and knee injuries required surgery.6 The present cause relates to an alleged cumulative trauma injury to Espoinosa's shoulders, arms and hands. ¶5 On January 11, 2005, the employee filed his Form 3 with the Workers' Compensation Court alleging cumulative trauma injury to both hands and arms with January 5, 2005, as the last date of exposure. On June 22, 2005, he added injury to both shoulders. On April 13, 2005, The employer denied that Espinosa sustained any injury in the course and scope of employment. ¶6 After several interim orders relating to medical treatment, medical case management, and temporary disability, a hearing was held August 31, 2009.7 At the hearing, the court was notified of the previous 2006 and two 2009 Workers' Compensation awards for permanent partial disability. The court entered its order on September 8, 2009, awarding permanent partial disability benefits related to the hands, arms and shoulders injuries. ¶7 The September 8, 2009, order provides that: 1) the employee became aware of his injuries in November of 2003; 2) the last date of exposure to injury was January 7, 2005; and 3) the employee was entitled to $264.00 per week for permanent partial disability. The court also determined Espinosa to be permanently impaired 20% to the left hand, 20% to the right hand, 24% to the left arm, 20% to the right arm, 20% to the left shoulder and 20% to the right shoulder. The court found that the employee was entitled to be paid for 409 weeks of permanent partial disability. The employer noted the fact that the employee had previously been awarded 89.1 weeks in 2006, and 30 and 305.0 weeks in 2009 for a total of 424.1 weeks and requested that the award be limited to 95.9 weeks pursuant to 85 O.S. 2001 §22(7).8 An award of 95.9 would have met the maximum total award of 520 allowed by §22(7). [The 520 statutory limit minus the 424.1 previously awarded equals 95.9]. The court denied this request and also directed the employer to pay medical expenses. ¶8 The employer appealed the order to a three-judge panel, contending that the award exceeded the cumulative 520 week limit on permanent partial disability because the employee had previously been awarded permanent partial disability for past injuries. On January 27, 2010, the panel vacated a portion of the trial court's findings and substituted its own findings. It found that Espinosa was entitled to 409 weeks of compensation for his injuries, just as the trial court had found. It also determined, like the trial court, that prior to this cause, the employee had been awarded 424.1 weeks of compensation for previous injuries. ¶9 Nevertheless, the panel found that because 200 weeks of compensation was attributable to back surgery and 20 weeks were attributable to the right knee, 220 weeks should be subtracted from the 424.1 weeks previously awarded. We note that if 220 weeks were subtracted from 424.1 previously awarded, the total number would be 204.1, however the inexplicable number the panel came up with was 169.1. It made this determination even though the record is unclear as to what portion of the employee's prior awards were actually attributable to surgeries. ¶10 Ultimately, the panel determined that the employee was entitled to 350.9 weeks of compensation. [The statutory limit of 520 minus 169.1, but the correct number should have been 520 minus 204.1 for a total of 315.9 weeks of benefits.] The employer appealed. ¶11 The Court of Civil Appeals: 1) noted the lack of evidence regarding previous surgeries and the erroneous calculations of the panel; 2) vacated the panel's decision and held that an employee may receive either a total permanent partial disability award of 100%, after excluding Multiple Injury Trust Fund awards and awards for surgeries and amputations or 520 weeks of permanent partial disability without such exclusions; and 3) recognized that its decision was contrary another division's opinion in United General Contractors v. Campbell, 2010 OK CIV APP 10, 231 P.3d 703. We granted certiorari on March 28, 2011, to resolve the two conflicting statutory constructions. ¶12 PURSUANT TO 85 O.S. 2001 §22(7), AWARDS AGAINST THEMULTIPLE INJURY TRUST FUNDS, OR AWARDS FOR AMPUTATIONSAND SURGERIES ARE EXCLUDED FROM BOTH THE 100% AND 520WEEK LIMITATIONS. ¶13 The employer argues that the clear language of 85 O.S. 2001 §22(7)9 indicates that there are two distinct and separate caps on aggregate permanent partial disability awards ---- one lower cap of 100% which allows the exclusion of surgeries and one higher as a cap on lifetime awards to 520 weeks without any exclusions. The employee contends that the surgery exclusion must be read in conjunction with both limitations. ¶14 The Workers Compensation Act was designed to provide compensation to covered workers for loss of earning capacity, incurred as a result of work-related accidents.10 It is a mutual compromise in which the employee relinquishes his/her right to sue for damages sustained in job-related injuries; and the employer accepts no-fault liability for a statutorily prescribed measure of damages.11 However, in exchange for the employer's greater and more certain exposure, the Act also provides the employer with certain advantages. It offered the employer a maximum loss and protected employers from excessive judgments.12 The object of the Act is to compensate, within the limits of the act, for loss of earning power and disability to work occasioned by injuries to the body in the performance of ordinary labor.13 ¶15 In Rivas v. Parkland Manor, 2000 OK 48, 12 P.3d 452, the Court addressed one of the limitations provided to employers within the Act. Rivas involved an injured claimant who had been previously adjudicated 99.85% permanent partially disabled who sought additional benefits for a 1997 shoulder injury which resulted in permanent partial disability of 30%. The claimant's previous awards included medical treatment and surgery and had occurred prior to the 1997 shoulder injury, when 85 O.S. 1991 §22(7) contained no limitations of the percentage a worker could be adjudicated permanently partially disabled.14 However, by 1997, the legislature had amended §22(7) to limit a worker's cumulative permanent partial disability to 100%.15 The legislature did not, at this time, carve out any exceptions for surgeries to be excluded from the 100% or 520 week limitations. ¶16 The question the Court addressed in Rivas was whether the 100% limit could constitutionally be applied to the injured claimant. The Rivas Court held that it could, noting that the 1997 injury was a totally new injury and not an exacerbation of a continuing injury. Even though the Rivas Court recognized that the claimant had previously been awarded medical treatment and surgery, there was no exclusion of such awards from the 100% statutory limitation because the statute did not provide for such exclusions. In fact, at the time, the statute specifically included awards against the Multiple Injury Trust Fund. ¶17 Rivas was decided on September 19, 2000, and the Legislature amended §22(7) during the next legislative session in 2001. The amended version specifically excluded awards against the Multiple Injury Trust Fund and awards for amputations and surgeries from the 100% limitation. It provided: The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided in the Workers' Compensation Act.16 (Emphasis supplied.) Clearly the Legislature recognized that an injured worker such as the Rivas claimant may have had to endure amputations or surgeries as a result of on-the-job injuries and it amended the statute to exclude compensation from those surgeries when limiting cumulative award totals. This make sense because, where it not for the injured workers previous on-the-job injuries, the worker would not have had any previous amputations or surgeries. ¶18 Nothing in the 2001 statutory change was added or deleted to the next sentence which also limited the total cumulative weeks to 520 weeks. We look to the text of the act, its underlying policies and to the purposes of workers' compensation generally in applying the provisions of the Act.17 The logical interpretation of 22(7) is to apply the exceptions to both the provisions limiting permanent partial disability 100 % and to 520 weeks. This is particularly true considering that after the 520 week limitation, the statute also provides that a claimant "may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided" in the Act. Other benefits in the Act would necessarily include medical treatment and surgeries. ¶19 There is no rational reason expressed in the statute or otherwise as to why the Legislature would intend to treat either a claimant or an employer differently when an injured worker exceeds 520 weeks but not 100% when both the 100% and 520 week limitations on employer awards are aimed at capping an employer's liability. Accordingly, we hold that Workers' Compensation Court awards compensation for an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 §22(7),18 the sum of all permanent partial disability awards is limited to a total of 100% or 520 weeks for any individual, but awards against the Multiple Injury Trust Funds, or awards for amputations and surgeries are excluded from both of these limitations. CONCLUSION ¶20 When the Workers' Compensation Court awards compensation for an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 §22(7),19 the sum of all permanent partial disability awards is limited to a total of 100% or 520 weeks for any individual, but awards against the Multiple Injury Trust Funds, or awards for amputations and surgeries, are excluded from both of these limitations. Here, the trial court did not exclude anything attributable to the surgeries from the employee's cumulative totals. On the other hand, the three-judge panel adjusted the award attributable to surgery, even though the record is unclear as to the exact portion attributable to previous surgeries. ¶21 When reviewing resolutions of fact on non-jurisdictional issues from a three-judge panel of the Workers' Compensation Court under the statutory scheme applicable to this cause, we do not re-weigh the evidence, but instead look for any competent evidence to support the trial court's findings.20 Competent evidence supporting the findings of a three-judge panel of the Workers' Compensation Court is that which is relevant and material to the issues to be determined.21 In the absence of competent evidence, the decision of a three-judge panel may be viewed as legally erroneous and subject to appellate vacation.22 Because there is evidence that prior awards were attributable to surgeries, but the actual portion of those awards is not reflected in the record, we overrule the three-judge panel and the trial court and remand the matter for a determination as to what portion of the previous awards were actually attributable to surgeries so that they may be excluded from the employee's cumulative limitations as provided by 85 O.S. 2001 §22(7).23 CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED;EN BANC PANEL OVERRULED; TRIAL COURT OVERRULED;CAUSE REMANDED WITH INSTRUCTIONS. COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, and GURICH, JJ., concur. TAYLOR, C.J., and WINCHESTER, J., dissent. FOOTNOTES 1 Oklahoma Supreme Court Rules, 12 O.S. 2001 Ch. 1 App. 1 Rule 1.178 provides in pertinent part: (a) Reasons for Certiorari. A review of an opinion of the Court of Civil Appeals in the Supreme Court on writ of certiorari as provided in 20 O.S.1991 § 30.1 is a matter of sound judicial discretion and will be granted only when there are special and important reasons and a majority of the justices direct that certiorari be granted. The following, while neither controlling nor fully measuring the Supreme Court's discretion, indicate the character of reasons which will be considered: . . .(3) Where a division of the Court of Civil Appeals has rendered a decision in conflict with the decision of another division of that court; . . . 2 Title 85 O.S. §22 has been amended 39 times since its inception. However, the general rule is that the law in effect at the time of an employee's injury controls in workers' compensation matters. A compensation claim is controlled by the laws in existence at the time of injury and not by laws enacted thereafter. King Manufacturing v. Meadows, 2005 OK 78, ¶11, 127 P.3d 584; Beets v. Metropolitan Life Ins. Co., 1999 OK 15, ¶2, fn. 2, 995 P.2d 1071. The trial court determined that the employee first became award of his injuries in 2003. The law in effect at that time was 85 O.S. 2001 §22(7) and it provides: 7. Previous Disability. The fact that an employee has suffered previous disability or impairment or received compensation therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease; but in determining compensation for the later accidental personal injury or occupational disease the employee's average weekly wages shall be such sum as will reasonably represent the employee's earning capacity at the time of the later accidental personal injury or occupational disease. In the event there exists a previous impairment which produced permanent disability and the same is aggravated or accelerated by an accidental personal injury or occupational disease, compensation for permanent disability shall be only for such amount as was caused by such accidental personal injury or occupational disease and no additional compensation shall be allowed for the pre-existing disability or impairment. The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund and awards for amputations, and surgeries, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided in the Workers' Compensation Act. 3 Title 85 O.S. 2001 §22(7), see note 2, supra. 4 The 2006 award was mentioned in the August 31, 2009, hearing before the trial judge. The only other details regarding the award were that it was case number 2005-12289-A and the order was filed April 28, 2006. Otherwise no other information is provided. 5 The July 2009 award was also mentioned in the August 31, 2009 hearing before the trial judge. The only other details regarding it were that is was case number 2005-12733-R. 6 Again, details about the awards are limited to being mentioned in the August 30, 2009 hearing before the trial court. The award was made in case number 2005-00305-H on August 11, 2009. The employee also received $400.00 for disfigurement for scarring. 7 For example, a June 6, 2005 order was entered allowing Espinosa to be examined by a Doctor. Medical treatment was authorized on November 9, 2005. The matter was referred to Medical Case management on January 24, 2006 and medical benefits were paid to a doctor and a rehabilitation facility on March 7, 2006. An order for medical treatment including surgery was entered March 23, 2006. Temporary Total Disability was awarded March 3, 2009, with the issue of possible over-payment reserved. Finally, the original trial judge recused on July 16, 2009. 8 Title 85 O.S. 2001 §22(7), see note 2, supra. 9 Title 85 O.S. 2001 §22(7), see note 2, supra. 10 Thomas v. Oklahoma Orthopedic & Arthritis Foundation Inc., 1995 OK 47, ¶15, 903 P.2d 279. 11 Weber v. Armco, Inc., 1983 OK 53, ¶4, 663 P.2d 1221. 12 Upton v. State ex. rel. Dept. of Corrections, 2000 OK 46, ¶8, 9 P.3d 84. 13 Smalygo v. Green, 2008 OK 34, ¶9, 184 P.3d 554; Strong v. Laubach, 2004 OK 21, ¶10, 89 P.3d 1066; Phillips v. Duke Mfg. 1999 OK 25, ¶6, 980 P.2d 137. 14 Title 85 O.S. 1991 §22(7). 15 Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452 held that the version of the statute in effect when the new 1997 injury occurred applied. In King Manufacturing v. Meadows, see note 2, supra the Court held that when the injury is a change in condition rather than a new injury, the statute in effect at the time of the initial injury governs. Title 85 O.S. Supp. 1997 §22(7) provided: 7. Previous Disability. The fact that an employee has suffered previous disability or impairment or received compensation therefor shall not preclude him from compensation for a later accidental personal injury or occupational disease; but in determining compensation for the later accidental personal injury or occupational disease his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later accidental personal injury or occupational disease. In the event there exists a previous impairment which produced permanent disability and the same is aggravated or accelerated by an accidental personal injury or occupational disease, compensation for permanent disability shall be only for such amount as was caused by such accidental personal injury or occupational disease and no additional compensation shall be allowed for the pre-existing disability or impairment. The sum of all permanent partial disability awards, including awards against the Special Indemnity Fund, shall not exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five hundred twenty (520) weeks' compensation for permanent partial disability, but may receive other benefits under the Workers' Compensation Act if otherwise eligible as provided in the Workers' Compensation Act. 16 Title 85 O.S. 2001 §22(7), see note 2, supra. 17 Sizemore v. Continental Cas. Co., 2006 OK 36, ¶24, 142 P.3d 47; Parret v. Unnico Serv. Co., 2005 OK 54, ¶18, 127 P.3d 572. 18 Title 85 O.S. 2001 §22(7), see note 2, supra. 19 Title 85 O.S. 2001 §22(7), see note 2, supra. 20 In the Matter of Death of Gray v. Ultramar Diamond, 2004 OK 63, ¶24, 100 P.3d 691; In the Matter of Death of Bryan v. Bryan, 2003 OK 70, ¶18, 76 P.3d 653; B.E. & K. Construction v. Abbott, 2002 OK 75, ¶1, fn. 1, 59 P.3d 38; Hughes v. Coal Grain Co., 1998 OK 76, ¶5, 964 P.2d 206. In 2011, the Legislature changed this standard of review. The new statute, 85 O.S. Supp. 2011§340 which becomes effective on November 1, 2011, provides in pertinent part: . . .The Supreme Court shall have original jurisdiction of such action, and shall prescribe rules for the commencement and trial of the same. After the effective date of this act, regardless of the date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the following grounds: 1. The Court acted without or in excess of its powers; 2. The order or award was contrary to law; 3. The order or award was procured by fraud; or 4. The order or award was against the clear weight of the evidence. . . . 21 In the Matter of Death of Gray v. Ultramar Diamond, see note 20, supra; In the Matter of Death of Bryan v. Bryan, see note 20, supra. OKC Refining Co., Inc., v. Gold, 1985 OK 42, ¶12, 701 P.2d 1034; City of Oklahoma City v. Lindsey, 1976 OK 48, ¶14, 549 P.2d 81. 22 In the Matter of Death of Gray v. Ultramar Diamond, see note 20, supra; In the Matter of Death of Bryan v. Bryan, see note 20, supra. Hughes v. Cole Grain Co., see note 20, supra; P.F.L. Life Ins. v. Franklin, 1998 OK 32, ¶26, 958 P.2d 156. 23 Title 85 O.S. 2001 §22(7), see note 2, supra.

6dc51af9-0160-4de8-9533-b42b7cfedd1a

In re Adoption of G.D.J.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ADOPTION OF G.D.J.2011 OK 77Case Number: 108889; Cons. w/109018Decided: 09/20/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF THE ADOPTION OF G.D.J., a minor child. TESSIA BRE STUBBS, Appellant,v.TERRY PEARSON and ROBERT PEARSON, Appellees. APPEAL FROM THE DISTRICT COURT OF JACKSON COUNTY, OKLAHOMA HONORABLE CLARK E. HUEY ¶0 The Petitioners/Appellees, petitioned to adopt grandson, G.D.J., by filing a Petition for Adoption and an Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother. The natural mother, Respondent/Appellant, contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Grandparents on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and one order on December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. This is a consolidated appeal of those orders. JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART; REVERSED IN PART; THE ADOPTION PROCESS MAY PROCEED Rebecca N. Beason and Michael T. Beason, Altus, Oklahoma, for Appellant.Barry K. Roberts, Norman, Oklahoma, for Appellees. COMBS, J. ¶1 The Petitioners/Appellees, Teryl Pearson and Robert Pearson (Pearsons) petitioned to adopt Teryl Pearson's (Pearson) grandson, G.D.J. (FA 2008-24, Jackson County, Oklahoma) by filing a Petition for Adoption, and an Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother. The natural mother, Tessia Bre Stubbs (Stubbs), Respondent/Appellant, contested the adoption. The trial court entered two orders on August 11, 2010, in favor of the Pearsons on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother and one order on December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother. This is a consolidated appeal of those orders. A final hearing on the Petition for Adoption has not occurred and is not the subject of this appeal. FACTUAL AND PROCEDURAL HISTORY ¶2 On October 21, 2008, the Pearsons filed a Petition for Adoption and Application to Adjudicate Minor Eligible for Adoption Without the Consent of the Natural Mother (AWOC), in Jackson County, Oklahoma (FA 2008-24). The Pearsons seek to adopt Pearson's grandson, G.D.J., a child who is alleged to be of Native American descent (Seminole Nation). The grounds alleged for the Adoption Without Consent were based on the failure of Stubbs to contribute to the support of G.D.J., and failure to maintain a meaningful relationship with G.D.J.1 As the petition asserted, G.D.J. was eligible for membership in the Seminole Nation. The Seminole Nation and Bureau of Indian Affairs were given notice of the proceedings. ¶3 On December 22, 2008, the Seminole Nation intervened and requested notification of all hearings, access to all documents submitted to the court, leave to submit its own reports and evidence, and leave to proceed further. On December 29, 2008, the Seminole Nation announced to the trial court that it would not seek to transfer the case to tribal court.2 The Seminole Nation has been given notice of all pleadings and hearings throughout the case. On March 4, 2009, Stubbs filed her Answer to the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother, and contested the proceedings. Stubbs alleged that because G.D.J. is eligible for membership in the Seminole Nation, the state and federal Indian Child Welfare Acts apply.3 ¶4 On February 3 and 24, 2009, an attorney and guardian ad litem respectively were appointed by the trial court for G.D.J. On November 19, 2009, Appellant filed a Motion to Dismiss the FA 2008-24 case on the grounds that another case before the same court (FA 2009-24) had already granted an order adjudicating G.D.J. to be eligible for an adoption without consent of the natural mother and was therefore res judicata.4 The trial court denied Appellants Motion to Dismiss on December 18, 2009. ¶5 The trial on Appellees' Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother began on March 10, 2010. The testimony revealed Pearson provided all the support for G.D.J. since that child was born, including food and housing. Stubbs revealed to Pearson that she and G.D.J.'s father, Brantley Jones, had been using drugs and, on April 17, 2007, Appellees sought and obtained emergency temporary custody of G.D.J. because the mother was in jail on criminal charges.5 On October 6, 2008, an order was entered granting Pearson custody of G.D.J. This order also required Appellant to pay child support. Trial testimony demonstrated, during the relevant period, Appellant paid no money for G.D.J.'s support, and Appellant had been periodically employed and had income from other sources during the relevant period.6 ¶6 Testimony was presented showing Stubbs had no meaningful or positive contact with G.D.J. Pearson kept records of Stubbs' visitations and phone calls. Contacts were sporadic, and there would be weeks at a time where no contact was made. Additional evidence indicated Stubbs had relationships with a convicted sex offender and another convicted felon, and G.D.J. was present during some of those contacts. The Pearsons presented evidence showing Stubbs had called to ask for visitation only five times in the fourteen months preceding the filing of the Petition for Adoption, and for seven of those fourteen months, she had no contact with G.D.J.7 ¶7 At trial on March 11, 2010, Appellant's counsel demurred to the evidence. The grounds for the demurrer were that Pearson had gained possession of G.D.J. in the previous custody case (CV 2007-159) in contravention of Oklahoma law, and Stubbs had been ordered not to pay support in a previous paternity case (CV 2006-335).8 Briefs were submitted, and on March 26, 2010, the demurrer was denied. ¶8 Following the denial of Stubbs' demurrer, Stubbs presented no evidence to controvert her failure to pay support during the relevant period. Stubbs admitted she had paid no money to the Pearsons for G.D.J.'s support, or brought any other items of support to the Pearsons during the relevant period.9 She did not dispute her violations of the law, drug use, or association with felons. Stubbs did not institute any court proceedings in regard to denial of visitation with G.D.J. during the relevant period. ¶9 The trial concluded on April 14, 2010. Appellant's counsel, having filed a Motion Requesting Findings of Fact and Conclusions of Law, chose to rely on the trial court to draft written findings of fact and conclusions of law, and did not submit proposed Findings of Fact and Conclusions of Law. ¶10 On August 11, 2010, the trial court made two orders: (1) Order Addressing Failure to Support, 10 O.S. Section 7505-4.2(B) and; (2) Order Addressing Failure to Maintain Relationship, 10 O.S. Section 7505-4.2(H). In the order addressing failure to support G.D.J., the court found Appellant paid no support between August 21, 2007, and October 21, 2008; the Appellees paid one hundred percent (100%) of the support for G.D.J.; the agreement to pay no child support between the parents to G.D.J., in case CV 2006-335, did not negate her duty of support; Appellant had the ability to obtain gainful employment; Appellant had income from other unidentified sources; and was aware she had an obligation to support G.D.J. The trial court found the Appellees had proven, by clear and convincing evidence, Appellant willfully failed and neglected to contribute to the support of G.D.J. according to her financial ability. ¶11 In the second order addressing failure to maintain relationship, the trial court found, between August 21, 2007, and October 21, 2008, Appellant had thirteen contacts with G.D.J., no more than three times in any month, and during seven of the fourteen months, she had no contact with G.D.J. The trial court determined during two of these visits, Appellant was in the company of convicted felons, one of whom was a registered sex offender. The trial court found the contacts were neither positive nor substantial and the Appellees met their burden of proof by clear and convincing evidence, and Appellant failed to establish and/or maintain a substantial and positive relationship with the minor child, pursuant to 10 O.S. Supp. 2007, Section 7505-4.2 (H). ¶12 On August 19, 2010, Appellant filed a motion for new trial on the grounds the two orders were not sustained by sufficient evidence and/or were contrary to law. A hearing was had on October 18, 2010, at which time Appellant raised the defense of lack of subject-matter jurisdiction. The trial court denied the motion for new trial on October 20, 2010. ¶13 On October 7, 2010, Appellees filed a Motion to Settle Journal Entry and submitted a proposed order adjudicating G.D.J. eligible for adoption without consent of the natural mother. The Appellant filed her Objections and a Response. On November 5, 2010, Appellant filed a Petition in error with this Court appealing the August 11, 2010 orders.10 On November 12, 2010, Appellees filed a Motion to Dismiss Appeal. On December 13, 2010, this Court denied the Motion to Dismiss. ¶14 A hearing was held on November 29, 2010, on the Motion to Settle Journal Entry, originally filed October 7, 2010. Appellees argued the August 11, 2010, orders were not final appealable orders. The Appellant argued the orders were appealable pursuant to Supreme Court Rule 1.20(b) and Title 12 O.S. §§ 681, 696.2 and 696.3. She also argued the trial court lacked subject-matter jurisdiction pursuant to Supreme Court Rule 1.37. ¶15 The trial court issued an Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother on December 2, 2010. The trial court also issued an order on the same day stating its findings as follows: Section 611 of Title 12 states that upon the request of a party, findings shall be made "upon questions of law involved in the trial." The record does not reflect that "questions of law" were raised, presented, or involved at trial as to the issues of subject matter jurisdiction or compliance with either UCCJEA or ICWA. Rather, the only "questions of law involved in the trial" and presented as contested issues and questions for the Court were: whether the natural mother failed to contribute to the support of the minor child as per 10 O.S. Section 7507(sic)-4.2(B), and whether she failed to maintain a relationship as set forth in 10 O.S. Section 7507(sic)-4.2(H). Although the Court may have erroneously entitled the findings of fact and conclusions of law filed on August 11, 2010 as "orders", (sic) the filed document in fact reflects findings of fact and conclusions of law as requested by the natural mother. The Court declines to make further findings of fact and conclusions of law, but does on this date enter an Order Adjudicating Minor Eligible for Adoption without Consent of the Natural Mother, all for the reasons stated in the record by Attorneys Womack, Mills and Dresback and to memorialize by Journal Entry the findings of fact and conclusions of law filed on August 11, 2010..(sic)11 ¶16 On December 13, 2010, this Court issued an Order denying the Motion to Dismiss Appeal filed on November 12, 2010. We additionally held the August 11, 2010, orders were final orders, and the appeal may proceed. Any party who was aggrieved by the trial court's order concerning the Motion to Settle Journal Entry was authorized to file a supplemental petition in error to seek review of that order. Appellant then filed a Supplemental Petition in Error and a second Petition in Error, as well as a Motion to Consolidate the two appeals.12 This Court issued an order consolidating the two appeals under Case No. 108,889, on December 21, 2010. STANDARD OF REVIEW ¶17 We review a trial court's judgment concerning questions of law by de novo review standard, without deference to the trial court's conclusion. In re A.N.O., 2004 OK 33, ¶3, 91 P.3d 646, 647. When making a determination of a child's eligibility for adoption without consent, an appellate court will review issues of fact under a clear and convincing standard. In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d 802, 807. The burden is on the party seeking to adopt without consent to prove such adoption is warranted by clear and convincing evidence. Id. "Accordingly, the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence." Id. ANALYSIS ¶18 Two grounds for adoption without consent were alleged by the Pearsons. First, the natural mother failed to provide support during the relevant period, and second, she did not establish and/or maintain a substantial and positive relationship with the minor child, G.D.J., during the same period. Subsections B and H of Section 7505-4.2 of Title 10 of the Oklahoma Statutes provide: B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child or a petition to terminate parental rights pursuant to Section 7505-2.1 of this title, has willfully failed, refused, or neglected to contribute to the support of such minor: 1. In substantial compliance with an order entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support, or 2. According to such parent's financial ability to contribute to such minor's support if no provision for support is provided in an order. For the purposes of this section, support for the minor shall benefit the minor by providing a necessity. Payments that shall not be considered support shall include, but are not limited to: a. genetic and drug testing, b. supervised visitation, c. counseling for any person other than the minor, d. court fees and costs, e. restitution payments, and f. transportation costs for any person other than the minor, unless such transportation expenses are specifically ordered in lieu of support in a court order. The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent. H. 1. Consent to adoption is not required from a parent who fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child. 2. In any case where a parent of a minor claims that prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, such parent had been denied the opportunity to establish and/or maintain a substantial and positive relationship with the minor by the custodian of the minor, such parent shall prove to the satisfaction of the court that he or she has taken sufficient legal action to establish and/or maintain a substantial and positive relationship with the minor prior to the receipt of such notice. 3. For purposes of this subsection, "fails to establish and/or maintain a substantial and positive relationship" means the parent: a. has not maintained frequent and regular contact with the minor through frequent and regular visitation or frequent and regular communication to or with the minor, or b. has not exercised parental rights and responsibilities. In the present case, the fourteen-month period (relevant period) is from August 21, 2007, through October 21, 2008. ¶19 A parent's consent to an adoption is not required if the parent willfully fails, refuses, or neglects to contribute to the support of their minor child in substantial compliance with a court order or according to the parent's financial ability to contribute to the minor's support if no provision for support is provided in an order.13 A parent's consent to adoption is also not required from a parent who fails to establish and/or maintain a substantial and positive relationship with the minor child.14 This is defined as not maintaining "frequent and regular contact with the minor through frequent and regular visitation, or frequent and regular communication with the minor, or has not exercised parental rights and responsibilities."15 The statute allows a defense to this requirement if, prior to the notice of the hearing on the application for adoption without consent, the parent can prove to the satisfaction of the court that he or she has taken sufficient legal action to establish and/or maintain a substantial and positive relationship with the minor child. Such action is based on the parent being denied the opportunity to have a relationship with the minor child due to the actions of the custodian. A parent may lose their right to consent to an adoption if either or both of these requirements are proven to the court by clear and convincing evidence. FAILURE TO SUPPORT ¶20 Although Stubbs admits she was employed and had other resources over the relevant period she did not pay any money or provide any necessities to the Pearsons for G.D.J.'s care .16 She asserts she had no duty to support because she was following a "no support" order in the paternity case which granted joint custody to the natural parents and stated "no support shall be owed by either Petitioner or Respondent." ¶21 This Court previously addressed a similar issue in Slover v. Smith, 1988 OK 119, 765 P.2d 1202. In Slover the natural parents of a two-year-old son were divorced in 1984. The mother received custody, and the father was ordered to pay support. Subsequently, the parents filed a joint motion to modify custody and a modification order was entered which placed custody in the father and "no child support [was] ordered payable by either party." This Court held: A natural parent who pays no child support in reliance on a prior explicit judicial exoneration of any financial obligation is neither refusing substantially to comply with a court order nor becomes liable to provide support according to one's financial ability. . . (Emphasis Added) ¶22 The facts in the present case reveal there was no explicit order to pay support for the benefit of G.D.J. The Pearsons did not receive custody of G.D.J until the trial court granted emergency custody on April 17, 2007. There was no order adjudicating Stubbs' duty of support until October 6, 2008, when she was ordered to pay Two Hundred and Three Dollars ($203.00) per month to the Pearsons.17 Pearsons then filed, on October 21, 2008, their Application to Adjudicate the Minor Eligible for Adoption Without Consent of the Natural Mother alleging Stubbs' failure to support. In the present case, the trial court found clear and convincing evidence that she did not support G.D.J. according to her financial ability during the relevant period, and therefore granted the Pearsons Application to Adjudicate the Minor Eligible for Adoption Without Consent of the Natural Mother. We find the trial court erred in this finding. See Slover v. Smith, supra. FAILURE TO ESTABLISH AND/OR MAINTAIN A SUBSTANTIALAND POSITIVE RELATIONSHIP ¶23 Pearson initially obtained custody by virtue of an Emergency Custody Order entered on April 17, 2007, in CV 2007-159, originally filed by Pearson seeking a custody order under the provisions of 43 O.S. § 101 et seq. This emergency order was in effect until the October 6, 2008, final custody order and was silent as to visitation. The emergency order provided and authorized Pearson to "perform all necessary acts to care for the needs of this child, including but not limited to providing counseling, medical needs, enrollment of this child in school, and otherwise take any necessary steps to care and protect the child." ¶24 At trial on the Application to Adjudicate Minor Eligible for Adoption Without Consent of the Natural Mother, testimony was taken to show Stubbs had not established and/or maintained a substantial and positive relationship with G.D.J. during the relevant period. Pearson kept a calendar showing when Stubbs had contact with G.D.J. including phone calls made to her residence by Stubbs or other members of her family. ¶25 Stubbs asserted, during the relevant period, she had been denied visitation. It appears from the testimony and record that this occurred in March and/or April, July, and August of 2008. One denial of visitation occurred when Stubbs was in a drug rehabilitation facility, and the other when Stubbs was notified by the Kiowa County Health Department that she had a positive tuberculosis skin test and it was being evaluated.18 Stubbs was also denied visitation another time because Pearson was concerned about the condition Stubbs seemed to be in on the phone and felt it was not in G.D.J.'s best interest to have visitation that day. The parties provided conflicting testimony about another time visitation was denied, either in March or April, when Pearson and Stubbs' mother had a heated argument. In March, Stubbs was allowed visitation, and during that visitation when she had possession of G.D.J., she was arrested at the court house in Greer County, Oklahoma.19 ¶26 In his August 11, 2010, order addressing failure to maintain relationship, and again in his December 2, 2010, order, Judge Huey found, during the relevant period, Stubbs had contact with G.D.J. only thirteen times, and for seven months, she had no contact.20 A majority of the contacts were arranged by Stubbs' mother and not Stubbs. The trial court found the contacts she had were neither positive nor substantial. During some of the contacts, G.D.J., was in the presence of convicted felons, one of whom was a registered sex offender, she caused G.D.J. to miss a birthday celebration at his daycare, she was arrested at a courthouse while in possession of G.D.J., and she had put G.D.J. at risk of exposure to communicable diseases. Also, during this time she had various criminal proceedings filed against her, along with outstanding bench warrants.21 Her testimony that she was prohibited from visiting or contacting G.D.J. was not found credible by the trial court. Additionally, the trial court did not find any proof she had taken sufficient legal action to remedy any denied opportunities to establish and/or maintain a substantial and positive relationship with G.D.J. ¶27 Stubbs' attorney argues she took sufficient legal action because of the litigation involved in the CV 2007-159 custody case. Section 7505-4.2 (H) of Title 10 of the Oklahoma Statutes requires a party to prove to the satisfaction of the court they took sufficient legal action against a denial of an opportunity to establish and/or maintain a substantial and positive relationship with the subject minor child by the custodian prior to the date of notice of the hearing on the adoption without consent. The record fails to demonstrate there was any action taken by Stubbs against the Pearsons during the relevant period based upon her being denied the opportunity to establish and/or maintain a substantial and positive relationship with G.D.J. ¶28 The trial court's findings that during the relevant period Stubbs did not maintain frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the minor child, and further that she has not exercised her parental rights and responsibilities are clearly supported by the record. The trial court's conclusion, the Pearsons had established by clear and convincing evidence that Stubbs failed to establish and/or maintain a substantial and positive relationship with G.D.J., was likewise supported by the record. ¶29 We find no reason to disturb the trial court's finding that the Pearsons met their burden of proof that Stubbs failed to establish and/or maintain a substantial and positive relationship with G.D.J. over the relevant period, by clear and convincing evidence, and issuing an order granting the Application to Adjudicate the Minor Eligible for Adoption Without the Natural Mother's Consent. ALLEGED ERRORS IN CV 2007-159ARE NOT APPEALABLE ¶30 Stubbs asserts errors were made in the grandparental custody case, CV 2007-159, which was filed and remains pending at this time. She argues everything in FA 2008-24, the case currently on appeal, fails because of the mistakes made in CV 2007-159. The proceedings conducted in CV 2007-159 are relevant only to the extent the trial court granted the Appellees temporary custody in that proceeding and what, if any, legal action was taken to establish and/or maintain a substantial and positive relationship with G.D.J. As we have found above, there is no evidence during the relevant period that Stubbs ever sought sufficient legal action concerning any alleged denials of opportunities for her to establish and/or maintain a substantial and positive relationship with G.D.J. Arguments about alleged errors in CV 2007-159 are beyond the scope of this appeal.22 THE TRIAL COURT PROPERLY APPLIED THE INDIAN CHILD WELFARE ACT OF 1978 (25 U.S.C. §§ 1901 et seq.) ¶31 Stubbs asserts the trial court incorrectly applied the Indian Child Welfare Act of 1978 (ICWA). She argues: 1) the requisite burden of proof on all issues in an adoption without consent of a natural parent is "beyond a reasonable doubt" rather than "clear and convincing evidence,"; 2) an adoption without consent of a natural parent constitutes a termination of parental rights as contemplated by the ICWA and; 3) in the alternative, if an adoption without consent is determined not to constitute a termination of parental rights the testimony of an expert witness at the adoption without consent hearing should have been required and a "beyond a reasonable doubt" standard of proof should have been applied to the issues in Section 1912(f) of the ICWA. ¶32 Section 1912(f) of the ICWA provides: (a). . .In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights . . . (f). . . No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence, beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. ¶33 The issue, whether a proceeding to determine a minor eligible for adoption without consent of a natural parent, is a proceeding for termination of parental rights. Section 1903 (1) (ii) of the ICWA in its definition of "child custody proceedings" defines "termination of parental rights" as ". . . any action resulting in the termination of the parent-child relationship." In subdivision (iv) of this same paragraph, Congress separately defined "adoptive placement" as "the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." ¶34 A reading of the Oklahoma Adoption Code is relevant to a resolution of this question. In 1998, the Oklahoma Legislature added subsection B to Section 7505-4.1 of Title 10 of the Oklahoma Statutes.23 Subsection B forbids combining a hearing on an application for adoption without consent with a hearing on the application for a final decree of adoption.24 This subsection further distinguishes the hearing, on an application for adoption without consent, from an application to terminate parental rights of a putative father. Subsections E, I, and J of Section 7505-4.1 provide further: E. At the hearing on an application to permit adoption without the consent or relinquishment of a parent, the court may determine whether the minor is eligible for adoption pursuant to Section 7505-4.2 of this title. At the hearing on an application to terminate the parental rights of a putative father, the court may, if it is in the best interests of the minor, determine that the consent of the putative father to the adoption of the minor is not required, and terminate any parental rights which the putative father may have, as provided in Section 7505-4.2 of this title. I. 1. . . . b. An appeal from an order determining a child eligible for adoption which does not terminate parental rights may be taken in the same manner provided for appeals from the court as provided in this subsection. The failure of a parent to appeal from an order declaring a child eligible for adoption without consent of the parent which does not terminate parental rights shall not preclude such parent from asserting error in the order after the final decree is rendered. 2. In an appeal concerning the termination of parental rights for purposes of adoption pursuant to this section or from an order determining a child eligible for adoption which does not terminate parental rights pursuant to this section, the appellant's designation of record shall be filed in the trial court within ten (10) days after the date of the judgment or order. Appellee's counter designation of record shall be filed in the trial court ten (10) days after appellant's designation of record is filed in the trial court. 3. All appeals of cases concerning the termination of parental rights for purposes of adoption or an order determining a child eligible for adoption which does not terminate parental rights pursuant to this section shall be initiated by filing a petition in error in the Supreme Court within thirty (30) days of the filing of the order, judgment, or decree appealed from. The record on appeal shall be completed within thirty (30) days from the filing of the petition in error. Any response to the petition in error shall be filed within twenty (20) days from the filing of the petition in error . . . J. Any appeal when docketed should have priority over all cases pending on said docket. Adjudication of appeals and any other proceedings concerning the termination of parental rights or the determination that a child is eligible for adoption without consent which does not terminate parental rights pursuant to this section shall be expedited by the Supreme Court. (Emphasis Added) ¶35 By the very language of these subsections, only in a termination case of a putative father's parental rights, can a trial court simultaneously find consent is unnecessary, and terminate such rights. This is distinguished from a determination that a child is eligible for adoption without consent, which does not terminate parental rights. ¶36 Section 1912 of the ICWA requires the use of a "beyond a reasonable doubt" standard of proof, for certain purposes, in a proceeding to terminate parental rights. As discussed above, our statutes prohibit a trial court from taking any action that results in a termination of the parent-child relationship in a proceeding to determine a minor child eligible for adoption without the consent of a natural parent. Therefore, a "clear and convincing" standard of proof is all that is necessary in such a proceeding. The higher standard of proof is relevant to the specific determination, the continued custody of the child by the parent or Indian custodian, is likely to result in serious emotional or physical damage to the child. The hearing on the petition for adoption, which has not occurred in the present case, will be a proceeding which may result in the termination of a parent-child relationship, and is the only proceeding in which the court may grant a final decree of adoption. At the hearing on the petition for adoption, evidence relevant to matters included in subsection (f) of Section 1912 must be proven "beyond a reasonable doubt" in order to support a determination that parental rights should be terminated, including the testimony of an expert witness. ¶37 In Merrell v. Merrell, 1985 OK 107, 712 P.2d 35, this Court considered the procedures of 10 O.S. Supp. 1975 Section 60.7, the predecessor to the provisions of 10 O.S. 2001, Section 7505-4.1. This Court determined "that it is the parental right of consent, rather than the absolute termination of all parental ties to the child, at issue in a section 60.7 hearing, we still . . . find the clear and convincing evidence standard . . . to be proper."25 This position was reiterated in In the Matter of the Adoption of J.R.M. 1995 OK 79, ¶17, 899 P.2d 1155, 1161, wherein this Court stated: . . . Absolute termination of parental rights is not decided at the time the consent issue is determined. Only when the final decree of adoption is entered are all parental responsibilities severed . . . ¶38 For the reasons stated above, we again find that a hearing on eligibility for an adoption without consent is not a termination proceeding. We further find the "beyond a reasonable doubt" standard of proof is only applicable for the purposes of 25 U.S.C. § 1912(f). Accordingly, the trial court applied the correct standard of proof at the hearing on the application to adjudicate minor eligible for adoption without consent of the natural mother. THE TRIAL COURT HADSUBJECT-MATTER JURISDICTION ¶39 Stubbs next asserts the trial court lacked subject-matter jurisdiction to hear the eligibility for an adoption without consent because another adoption case (FA 2009-24) in the same jurisdiction had already granted eligibility for an adoption without consent. FA 2009-24 is a second petition for adoption filed by the Pearsons in Jackson County and remains pending before the same judge. It involves the same parties and minor child and sought an order determining G.D.J. eligible for adoption without consent of the natural mother. On November 18, 2009, the trial court entered a default order, in FA 2009-24, adjudicating the minor eligible for adoption without consent of the natural mother.26 The trial court found the natural mother had failed to support the minor child for a period of twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition for adoption of G.D.J. Stubbs argues it is a legal impossibility for a natural parent to lose their ability to consent to adoption more than once on the same child and the trial court erred in failing to dismiss for want of subject-matter jurisdiction.27 Therefore, the trial court had no real ability to adjudicate a right previously lost, and thus lacked subject-matter jurisdiction. ¶40 We disagree. The determination of eligibility for an adoption without consent is solely based on a limited time frame. Once a petition is filed, the relevant time period is set by the provisions of 10 O.S. Supp. 2007, Section 7505-4.2 (B) and (H). The evidence necessary to prove whether an adoption may proceed without a natural parent's consent cannot deviate from the "twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child . . . " This evidence must show, during this relevant period, either the natural parent willfully failed, refused, or neglected to contribute to the support of such minor child, or failed to establish and/or maintain a substantial and positive relationship with the minor child. The evidence necessary to prove whether consent is necessary will concern a different timeline. Although confusing in the present case, it would appear the Appellees felt compelled to define a second timeline within which they allege the natural mother failed to support G.D.J. Such determination alone will not bar a court from subject-matter jurisdiction over the first alleged timeline.28 The trial court did not commit reversible error, as alleged, by prohibiting Appellant from presenting evidence concerning case number FA 2009-24. ¶41 Appellant additionally asserts the trial court did not have subject-matter jurisdiction because the Appellees failed to satisfy the provisions of the Oklahoma Adoption Code, 10 O.S. Supp. 2005, Section 7502-1.1 (C)-(E)(2). Appellants "candidly" admit the Appellees satisfied the jurisdictional requirements of 10 O.S. Supp. 2005, Section 7502-1.1 (A)(1)(a). The argument appears to be, the failure of the Appellees to satisfy irrelevant provisions of Section 7502-1.1 (C)-(E)(2), somehow deprived the trial court of subject-matter jurisdiction. This argument is without merit. These subsections provide certain restrictions on jurisdiction when another court of this state has jurisdiction in a deprived action or when a custody or adoption proceeding is pending in a court of another state. No party asserts there is any other action pending in any other jurisdiction either within Oklahoma or without Oklahoma other than the previously mentioned case, FA-2009-24. Any failure to specifically make findings of the lack of any other pending matter is harmless at best. ¶42 The trial court had jurisdiction pursuant to subparagraph a of paragraph 1 of subsection A of Section 7502-1.1. The statute provides: A. Except as otherwise provided in this section, a court of this state has jurisdiction over proceedings to terminate parental rights and proceedings for the adoption of a minor commenced pursuant to the Oklahoma Adoption Code if: 1.a. Immediately preceding commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent, or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, ¶43 The Pearson's Petition for Adoption in the present action established the necessary facts for jurisdiction. This Court has consistently held subject-matter jurisdiction is invoked by the pleadings filed and where such pleadings state a case over which the jurisdiction of the court extends, then jurisdiction will attach, and the court has the power to hear and determine the issues.29 We find the trial court has jurisdiction over the subject matter of this case and the Pearsons' Petition sufficiently invoked that jurisdiction. FINDINGS OF FACT AND CONCLUSIONS OF LAW ¶44 Stubbs next argues the trial court failed in its August 11, 2010, and December 2, 2010, orders to make findings of fact and conclusions of law contrary to the provisions of 12 O.S. 2001, Section 611.30 This Court has previously held "it is not prejudicial error in every case to deny a request for a separate finding of fact for the court is not bound to make separate findings concerning immaterial facts, nor is the court bound to find material facts in greater detail than necessary for a correct decision of questions of law involved in the case in the event the action is reviewed by a higher court."31 The object of 12 O.S. 2001, § 611"is to enable the parties to have placed on the record the facts upon which the rights litigated depend, as well as the conclusions of law which the court drew from the facts found, so that exception may be taken to the views of the trial court as to the law involved in the trial."32 The findings of fact and conclusions of law, although not specifically designated as such in the orders, were sufficient to present the issues to this Court on appeal and failure to separately designate them also did not amount to prejudicial error.33 THE ORDER OF AUGUST 11, 2011,AND THE DECEMBER 2, 2010, ORDER WERE SUFFICIENT TO CONSTITUTE APPEALABLE ORDERS ¶45 Appellant additionally asserts the trial court was without jurisdiction to issue the order of December 2, 2010, following her filing of an appeal with this Court concerning both August 11, 2010, orders.34 She states the trial court exceeded its jurisdictional authority, under Supreme Court Rule 1.37(a), in hearing and granting the Appellees' Motion and/or Amended Motion to Settle Journal Entry.35 Her contention is the December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother made findings of subject-matter jurisdiction not previously made by the trial court in the August 11, 2010, orders. On December 13, 2010, we held the August 11, 2010, orders were appealable orders and allowed any party aggrieved by the decision on the Motion to Settle Journal Entry to file a supplemental petition in error which did occur in this case. Because the August 11, 2010, orders are valid appealable orders we find Appellant's arguments concerning the December 2, 2010, Order Adjudicating Minor Eligible for Adoption Without Consent Of The Natural Mother to be moot and no further consideration is necessary by this Court. For all of the above reasons we affirm in part and reverse in part the judgment of the district court and the adoption may proceed. JUDGMENT OF THE DISTRICT COURTAFFIRMED IN PART; REVERSED IN PART;THE ADOPTION PROCESS MAY PROCEED ¶46 ALL JUSTICES CONCUR FOOTNOTES 1 10 O.S. Supp. 2007, § 7505-4.2 (B) & (H) 2 Appellant claims the trial court erred in not transferring the case to tribal court. On March 16, 2009, Stubbs filed The Natural Mother's Motion Requesting Transfer to Tribal Court. Attached to her motion was an affidavit of Billye Leitka, an Indian Child Welfare Specialist for the Seminole Nation of Oklahoma. Billye stated the tribe had not requested a transfer but would be receptive if one was requested. Appellees responded citing §1911 of the ICWA which states "in the absence of good cause to the contrary, [state court] shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent". A hearing was held on May 5, 2009. Billye Leitka testified via telephone and Brantley Jones, the natural father and son of Pearson, testified in person. Billye said it was her understanding that if a parent objects, the tribe would not accept a transfer. Brantley objected to the transfer. The trial court then correctly held that the federal law does not allow a transfer to tribal court if a parent objects to such transfer. 3 The Oklahoma Indian Child Welfare Act (10 O.S. §40, et seq.); Indian Child Welfare Act of 1978 (25 U.S.C. §§ 1901 et seq.). 4 The FA 2009-24 case was filed by the Appellees in the same court on October 19, 2009, and sought an adoption without consent concerning a different timeline against the Appellant regarding G.D.J. 5 Transcript of the Proceedings held on March 10, 2010, page 11. The custody case is case number CV 2007-159 before the same court. The Answer Brief was corrected to note these criminal charges were not drug-related. 6 August 21, 2007 - October 21, 2008 (relevant period) is the fourteen-month period prior to the filing of the Petition for Adoption which is used in evaluating adoption without consent cases pursuant to 10 O.S. Supp. 2007, § 7505-4.2. 7 Transcript of the Proceedings held on March 10, 2010, page 137. 8 CV 2006-335 was a case filed to determine custody of G.D.J. between Tessia Stubbs and Brantley Jones. Joint custody was awarded on October 18, 2006, and "no support" was ordered to be paid by either party to the other. 9 Transcript of the Proceeding held on March 31, 2010, pages 142 and 157. 10 Case No. 108,889. 11 The correct citations are 10 O.S. Supp. 2007, Section 7505-4.2 (B) and (H) not 7507-4.2 (B) and (H). 12 The second Petition in Error was assigned to Case No. 109,018. 13 10 O.S. Supp. 2007, Section 7505-4.2(B) 14 10 O.S. Supp. 2007, Section 7505-4.2(H). 15 10 O.S. Supp. 2007, Section 7505-4.2(H)(3)(a) &(b). 16 Transcript of the Proceeding held on March 31, 2010. Stubbs testified during the relevant period she was a certified nursing assistant. Id. at page 163. She was employed for a little over a month but lost her CNA job when she was charged with possession of a controlled dangerous substance. She testified she may have had other jobs during the relevant period and was able to work. Id. at page 164. Further she said she had money she used to buy illegal drugs Id. at page 166. She also testified her living expenses were paid by her parents and her father would give her money periodically. Id. at pages 164-165. 17 Case No. CV 2007-159, Jackson County, Oklahoma. 18 Kiowa County Health Department Taberculin Skin Test (TST) Screening Health Certificate (Petitioner's Exhibit 21). 19 Transcript of the April 14, 2010, hearing at pages 14-15. 20 The thirteen were total contacts including Stubbs' visitation of G.D.J. and telephone contact. The months where the court found that there was no contact were, November 2007, April 2008, and June through October 2008. Respondent's Exhibit 11 (marked Defendant's Exhibit 11) indicated she didn't call in April 2008, because she was in jail in Greer County. Two of these months, July and August 2008, visitation was denied. In July 2008, Stubbs asked to see G.D.J. before she went into drug rehabilitation treatment. Pearson refused because she wanted proof Stubbs was not at risk of exposing G.D.J. to tuberculosis. In August, 2008, Stubbs asked Pearson to bring G.D.J. to the drug rehabilitation center. Pearson refused because she didn't think it was a good environment for G.D.J. and would be confusing for him. Later that same month Pearson set up visitation but Stubbs cancelled it. 21 The warrants were in the following cases: District Court of Greer County, Oklahoma, Case No. CM 2007-00155 and CM 2007-00113; Municipal Criminal Court of the City of Norman, Oklahoma, Case No. 2007-02132. 22 An appeal of a judgment, decree, or appealable order must be commenced by filing a petition in error with the Clerk of Supreme Court of Oklahoma within thirty (30) days from the date of such judgment, decree, or appealable order. 12 O.S. Supp. 2002, § 990A. 23 HB 2829 (1998), 2nd Regular Session of the Forty-Sixth Legislature; 1998 Okla.Sess.Laws c. 415, § 20. The predecessor to this language is found in 10 O.S. Supp. 1975, § 60.7, which was repealed in 1997, Okla.Sess.Laws, ch. 366, § 60. 24 "B. A hearing on an application for adoption without consent or an application to terminate parental rights cannot be combined with the hearing on the application for a final decree of adoption. For good cause shown, a hearing on the application for a final decree of adoption may be heard as early as the same day as a hearing on an application to terminate parental rights, without prejudice to the rights of any parties to appeal from the order terminating parental rights." 25 This Court and subsequent opinions of different Divisions of the Oklahoma Court of Civil Appeals have found a hearing on the eligibility for an adoption without consent does not affect a termination of parental rights. Also see, the concurring opinion of Lavender, J., with whom Opala, J., joins, upholding the decision in Merrell; In the Matter of the Adoption of K.D.K, 1997 OK 69, 940 P.2d 216. The Court of Civil Appeals in Adoption of D.R.W., 1994 OK CIV APP 10(Div. III), 875 P.2d 433, found that "[h]owever, obviously, in a consentless adoption the parent-child bond is materially altered. We fail to see a material distinction where the child's rights are considered." Id. at ¶7, pg. 435. This same Division, (Division III), later agreed with this Court's holding in Merrell v. Merrell, 1985 OK 107, 712 P.2d 35, that "an order determining a child eligible for adoption without consent of a parent does not result in a termination of that parent's parental rights." In the Matter of the Adoption of R.L.A., 2006 OK CIV APP 138¶23, 147 P.3d 306, 311. This same court went further and said "we need not determine, at this time, whether such an order, or even a final order for adoption is a 'termination of parental rights' as contemplated by 25 U.S.C. §1912(d) and §1912 (f)." R.L.A. also held the only reasonable interpretation of 25 U.S.C. § 1912(f) is the "beyond a reasonable doubt" standard of proof only applies to the specific issues in that section. Id. at ¶14, page 310. In 2008, Division I of the Oklahoma Court of Civil Appeals agreed with R.L.A.in that the heightened standard of proof, only applies to the factual determination required by 25 U.S.C. § 1912(f) to be made in ICWA termination cases and the state law mandated burden of proof of "clear and convincing evidence" applies to all other state law requirements for termination. In the Matter of J.S., 2008 OK CIV APP 15, ¶4, 177 P.3d 590, 591. We agree with those findings. 26 Appellant's Exhibit 12 (entitled Defendant's Exhibit 12). 27 Stubbs filed a Motion to Dismiss in FA 2008-24 on November 19, 2009. A hearing on the Motion to Dismiss was had on December 16, 2009, and the trial court denied the motion in an Order entered December 18, 2009. 28 It should be noted the trial court granted a default order on the application to adjudicate minor eligible for adoption without consent in FA-2009-24 prior to the trial court granting the orders in the present case now on appeal. No appeal was taken from the order entered in FA-2009-24. 29 In Re: A.N.O., A Minor Child, 2004 OK 33, ¶9, 91 P.3d 646, 649; State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, 753 P.2d 1356; Flick v. Crouch, 1967 OK 131, 434 P.2d 256; and Metzger v. Turner, 1945 OK 149, 158 P.2d 701. 30 Title 12 O.S. 2001, § 611. "Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the findings of fact found, separately from the conclusions of law." Stubbs timely made a written request for findings of fact and conclusions of law prior to the trial. She also made an oral and timely motion requesting findings of fact and conclusions of law for the decisions to be rendered on the Appellees' Motion and Amended Motion to Settle Journal Entry, Transcript of the Proceedings on November 29, 2010, page 1, lines 22-25; page 2, lines 1-3. The trial court declined to make further findings of fact and conclusions of law in its Order of December 2, 2010. See ¶ 15 of this opinion. 31 Davis v. School Dist. No. D-14, LeFlore County,1981 OK 24, ¶5, 625 P.2d 630, 632; Tulsledo Oil Company v. State, 1963 OK 233, ¶17, 386 P.2d 161, 165; Reed v. Richards & Conover Hardware Co, 1941 OK 21, ¶6, 110 P.2d 603, 604; Mistletoe Express Service v. United Parcel service, Inc., 1983 OK 27, ¶3, 674 P.2d 1, 3. 32 Messinger v. Messinger, 1958 OK 296, ¶5, 341 P.2d 601, 604; Mistletoe, Id. 33 Although Court of Civil Appeals opinions are not precedential unless approved for publication by the Supreme Court, see, 20 O.S. 2001, § 30.5 and Rule 1.200(c)(2), Oklahoma Supreme Court Rules, 12 O.S. 2001, Ch. 15, App.1, we agree with the findings of the Court of Civil Appeals in Newell v. Nash, 1994 OK CIV APP 143, ¶16, 889 P.2d 345, 349, that without a showing of a benefit or prejudice to either party, prejudicial error will not be found merely because the conclusions of law are not so identified nor separated from the findings of fact. As in Newell, the trial court separately numbered and stated each finding/conclusion. 34 Stubbs filed her Petition in Error in case number 108,889 on November 5, 2010. The final Order Adjudicating Minor Eligible for Adoption Without Consent of the Natural Mother was filed on December 2, 2010. On August 11, 2010, the trial court had issued an Order Addressing Failure to Support and an Order Addressing Failure to Maintain Relationship. The trial court stated in another December 2, 2010, Order that found the August orders were erroneously entitled "orders"and were actually the findings of fact and conclusions of law requested by the natural mother. See ¶ 15 of this opinion. Appellees' filed with this Court a Motion to Dismiss Appeal on November 12, 2010. This Court issued an Order on December 13, 2010, finding the August 11, 2010, orders were final appealable orders determining the minor child could be adopted without the consent of the mother. We further stated a party may file a Supplemental Petition in Error if they are aggrieved by any order filed by the trial judge which decides the Appellees' Motion to Settle Journal Entry. Stubbs subsequently filed a Supplemental Petition in Error and a Petition in Error (case no. 109,018) on December 16, 2010. The two appeals were consolidated on December 21, 2010. 35 Rule1.37, Oklahoma Supreme Court Rules, 12 O.S. 2001, Ch. 15, App.1. (a) Trial Court Jurisdiction. After a petition in error has been filed, the trial court retains jurisdiction in the case for the following purposes: (1) To facilitate the completion of the record and allocate the costs of its preparation. (2) To grant or modify orders in regard to custody, guardianship, support, and maintenance. (3) To decide motions for a new trial which assert grounds that are provided by 12 O.S.1991 § 655 or a motion or petition for relief on grounds provided for by 12 O.S.1991 § 1031 and 12 O.S.Supp.1993 § 1031.1. (4) To decide motions in regard to staying the enforcement of judgments, decrees or final orders or of interlocutory orders appealable by right, whether subject to stay of enforcement as a matter of statutory right, or subject to a discretionary stay order. (5) In matrimonial litigation, to award attorney's fees for services rendered or to be rendered in connection with the appeal, to award alimony pending the appeal or to issue orders affecting the custody of children or the property of the parties pending the appeal. Jones v. Jones, 612 P.2d 266 (Okla.1980). (6) To change the status of a litigant from that of next friend to guardian ad litem, or to appoint an attorney for such litigant and to impound funds that are in dispute. (7) To take action with respect to any issue collateral to a pending appeal. (8) To determine any matter ordered by the Supreme Court. (9) To determine any issue whose resolution pending appeal is explicitly authorized by law. (10) When the parties to a cause pending on appeal or on certiorari have agreed to a settlement of the claim and their agreement requires the trial court's approval, the parties may file in the Supreme Court a joint motion (a) for an order staying further proceedings for a period to be specified and (b) for leave to proceed before the trial court to secure approval of the settlement. If settlement is approved, a certified copy of the trial court's order attached to a joint motion should then be brought in this court for dismissal of the appeal or certiorari. An approved settlement need not and shall not be submitted for this court's review in the pending appeal. If a dispute should arise over the correctness of the trial court's settlement approval or over any of its terms, and corrective relief be sought, it must be by a timely-perfected appeal form (sic) the trial court's order that resolved the parties' settlement dispute. Goldman v. Goldman, 883 P.2d 164 (Okla.1994)...

323a1010-22ec-411e-b6d5-cdf9dcc393a9

Dilliner v. Seneca-Cayuga Tribe of Oklahoma

oklahoma

Oklahoma Supreme Court

DILLINER v. SENECA-CAYUGA TRIBE OF OKLAHOMA2011 OK 61Case Number: 109085Decided: 06/28/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JERRY R. DILLINER, DARLENE BOYD, GARY CROW, KATIE L. FISHER, JACOB ALTHOUSE, JAMES DAVIS, MARGARET DAVIS, TROY D. DRY, LINDY FLICKINGER, CODY A. FISHER, SHANDREA D. HOUSMAN, LINDA C. JUDD, ROXANN KINSEY, ELIZABETH LEWIS, KIRK POSTOAK, JAMIE T. QUICK, JANICE QUICK, JEREMY QUICK, SAMMY QUICK, ALBERT TY SLAUGHTER, CALEB J. SLAUGHTER, SANDRA L. SLAUGHTER, DUSTIN SPICER, LOUIS SPICER, SHERRY L. SPICER, GARY TOLAND, JORDANA N. TYRON, and MARK WOODS, Appellants,v.SENECA-CAYUGA TRIBE OF OKLAHOMA, Appellee. APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY, OKLAHOMA. HON. ROBERT E. REAVIS, ASSOCIATE DISTRICT JUDGE ¶0 Plaintiffs sued Seneca-Cayuga Tribe of Oklahoma for breach of employment contracts. The contracts contained a limited waiver of sovereign immunity. Tribal law requires that waiver of sovereign immunity must be consented to by the Business Committee of the Tribe by resolution. The resolutions adopted by the Business Committee of the Tribe did not waive the Tribe's sovereign immunity or consent to waiver of sovereign immunity. The trial judge, on motion for reconsideration, granted the Tribe's motion to dismiss for lack of subject matter jurisdiction and dismissed the case. AFFIRMED. Dennis Caruso, Caruso Law Firm, P.C., Tulsa, Oklahoma, Clint Ward, Ward & Lee, Vinita, Oklahoma, for Plaintiffs/Appellants.Scott N. Edwards, Miami, Oklahoma, John G. Ghostbear, Tulsa, Oklahoma, for Defendant/Appellee. EDMONDSON, J. ¶1 The question before us is whether the Seneca-Cayuga Tribe of Oklahoma expressly and unequivocally waived its sovereign immunity with respect to certain employment contracts entered into with tribal employees. The Seneca-Cayuga Tribe of Oklahoma (Tribe) is a federally recognized Indian tribe. The Tribe has a Constitution and By-Laws. The Tribe also was issued a corporate charter by the Secretary of the Interior under the Oklahoma Indian Welfare Act, 25 U.S.C. § 503. The Tribe and its corporation are separate entities. State ex rel. Oklahoma Tax Comm'n v. Thlopthlocco Tribal Town of Oklahoma, ¶2 Pursuant to Art. VI of its Constitution, the Business Committee of the Tribe has the power to transact business and to speak or act on behalf of the Tribe in all matters in which the Tribe is empowered to act. Article IV of the By-Laws provides that four members of the Business Committee shall constitute a quorum at any meeting. Resolution #23-120303 "Business Committee Actions," dated December 3, 2003, provides that, pursuant to Article VI of the Constitution and Article IV of the By-Laws of the Tribe, no individual member of the Business Committee is authorized to transact business or otherwise speak or act on behalf of the Tribe in any matter on which the Tribe is empowered to act. It further provides that the act of a majority of members present in person at a meeting at which a quorum is present shall be the act of the Business Committee. ¶3 The Business Committee of the Seneca-Cayuga Tribe passed Resolution #22-120303 on December 3, 2003. It provided that the Seneca-Cayuga Tribe has the right to assert sovereign immunity as a defense to an action brought against the Tribe, and states that: . . . no waiver, either express or implied, of the right to assert sovereign immunity as a defense in an action brought against the Seneca-Cayuga Tribe of Oklahoma shall be valid without the consent of the Business Committee expressed by resolution. ¶4 On or about July 26, 2007, employment contracts were entered into between the Tribe and tribal employees for terms of three years. The contracts were identical except for job titles and salaries. The contracts provided that if the employee was terminated by the employer, the employee would be entitled to receive his or her continued base salary for the remainder of the contract term. Section 9 of the employment contracts contained a provision for limited waiver of sovereign immunity: 9. Waiver of Sovereign Immunity The Tribe hereby expressly grants to Employee a limited waiver of its sovereign immunity from uncontested suit or judicial litigation. ¶5 On July 26, 2007, a poll vote of the Seneca-Cayuga Business Committee resulted in Resolution #27-072607, which was styled: "Authorization for Chief to Sign a Three Year Employment Agreement with Tribal Employees." The resolution stated that Chief Paul Spicer was authorized to sign a three year employment agreement between the Seneca-Cayuga Tribe of Oklahoma and tribal employees at their present salaries and in their present positions of employment. The poll vote was 5 yes, 0 no and 2 unavailable.2 ¶6 On August 14, 2007, the Business Committee of the Tribe, at its regular business meeting, passed a resolution in an attempt to ratify Resolution #27-072607. Resolution #46-081407 was styled: "To Ratify Authorization to Enter Into Three Year Employment Contracts." Resolution #46-081407 recited that the Business Committee had approved Resolution #27-072607 on July 26, 2007, which was authorization for the Chief to sign a three year employment agreement with tribal employees, and that the Business Committee felt that the action authorized by Resolution #27-072607 was in the best interest of the Tribe and its government, and of the Tribal Corporations. The final clause, however, recited instead that Resolution #17-061507 was ratified and affirmed. ¶7 The plaintiffs were terminated from employment prior to the end of the three year term and filed suit in the district court of Ottawa County to recover their base salaries until the end of the term. The Tribe moved to dismiss on the grounds of tribal sovereign immunity. The plaintiffs argued that the Tribe expressly waived sovereign immunity because the contracts contained a waiver of sovereign immunity and the Tribe had ratified the contracts by the Business Committee's resolutions. The Tribe argued that it did not waive sovereign immunity and that the resolutions did not ratify the contracts or consent to waiver of the Tribe's sovereign immunity. ¶8 After a hearing on the Tribe's motion to dismiss, the trial judge made findings of fact and conclusions of law and determined that the Tribe had waived sovereign immunity. He denied the Tribe's motion to dismiss by order dated June 24, 2010. The Tribe filed a motion for reconsideration, raising numerous arguments, including that the resolutions relied upon by plaintiffs were not valid and that, even if they were valid, they did not contain an express waiver of sovereign immunity, as required by federal and tribal law, and they did not ratify the contracts. ¶9 The Tribe argues that Resolution #27-072607 is not valid because tribal law requires the act of a majority of members present in person at a meeting at which a quorum is present in order to be a valid act of the Business Committee, pursuant to Resolution #23-20303. They argue that Resolution #46-081407, which purports to ratify Resolution #27-072607, is not valid because it in fact ratifies a different resolution, #17-061507. ¶10 Tribe argues that even if the resolutions are valid, Resolution #27-072607 did not ratify the contracts, but only gave authorization for the Chief to sign them. Resolution #46-081407 did not ratify the contracts, but only ratified the prior resolution. Thus, Tribe argues, the employment contracts were never validly ratified or authorized by the Tribe and the Tribe did not waive sovereign immunity as required by tribal law. ¶11 The plaintiffs responded to the motion to reconsider by filing a motion to strike or deny the motion on the grounds that it was untimely filed. The plaintiffs did not respond to the merits of Tribe's arguments on the motion to reconsider. After a hearing, the trial judge ruled that the Tribe had not waived its sovereign immunity and granted the Tribe's motion to dismiss for lack of jurisdiction. Plaintiffs appealed and this Court granted plaintiffs' motion to retain the appeal. ¶12 The standard of review for questions concerning the jurisdictional power of the trial court to act is de novo. Jackson v. Jackson, ¶13 Courts have looked to tribal law in determining jurisdiction. The Tenth Circuit Court of Appeals, in Native American Distributing v. Seneca-Cayuga Tobacco Company, 546 F.3d 1288, 1295 (10th Cir. 2008), looked to tribal law to determine whether the Seneca-Cayuga Tobacco Company was an enterprise of the tribe as a governmental entity rather than an enterprise of the tribal corporation. They held that the district court lacked jurisdiction because the business committee of the tribe invoked its constitutional powers in the resolution creating the tobacco company, which resolution expressly declared that the tobacco company and its activities were essential governmental functions of the tribe. ¶14 In Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1287(11th Cir. 2001), the tribe's chief was held to be without actual or apparent authority to enter into contracts that would waive the tribe's sovereign immunity for Rehabilitation Act suits where the tribal resolution did not specifically provide for waiver. A tribal ordinance specifically dealt with the tribe's sovereign immunity and how a waiver could be effected by tribal leaders. It provided that the consent of the Seminole Tribe of Florida to waive its immunity from suit in any state or federal court could be accomplished only through the clear, express and unequivocal consent of the tribe pursuant to a resolution duly enacted by the tribal council sitting in legal session. Such resolution was required to specifically acknowledge that the tribe was waiving its sovereign immunity on a limited basis and describe the purpose and extent to which such waiver applied. The 11th Circuit said: "Chief Billie did not somehow become vested with the power to waive that immunity simply because he had the actual or apparent authority to sign applications on behalf of the Tribe for federal funding. Such a finding would be directly contrary to the explicit provisions of the Tribal Constitution and Tribal Ordinance C-01-95 which expressly set forth how, when, through whom and under what circumstances the Seminole Tribe may voluntarily waive its immunity. 243 F.3d at 1288. The court found that the tribe's acceptance of federal funds and entering into contracts which required the tribe to refrain from discrimination on the basis of disability did not waive the Tribe's sovereign immunity from suits brought pursuant to the Rehabilitation Act. ¶15 The Sixth Circuit has held that a waiver of sovereign immunity clause in a tribal corporation's contract was insufficient without approval of the board by resolution, as required by tribal law. Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc., 585 F.3d 917 (6th Cir. 2009). Chickasaw Nation Industries, Inc. (CNI), a federally chartered tribal corporation incorporated under the Oklahoma Indian Welfare Act, entered into a contract with Memphis Biofuels, LLC. (MBF). CNI's Charter required that approval by its board of directors was necessary in order to waive CNI's sovereign immunity. MBF insisted on a contractual provision expressly waiving any sovereign immunity, coupled with a "representation and warranty" that CNI's waiver was valid, enforceable and effective. During drafting negotiations, two comments addressed the sovereign immunity waiver provision and stated that approval by the board of CNI was necessary in order to waive sovereign immunity. MBF and CNI signed the contract, but the board of directors of CNI did not waive immunity. CNI repudiated the agreement and MBF filed a demand for arbitration. ¶16 Litigation ensued and, on appeal, the Sixth Circuit found that CNI had not expressly waived its tribal sovereign immunity, either in its charter or by agreement. They stated that CNI's corporate charter controlled the way that sovereign immunity could be waived, and the charter required approval by the board of directors. Even though the parties had signed a provision waiving all immunities and MBF believed that CNI had obtained the required board approval, the waiver was insufficient. Tribal law required approval of the board of directors to waive sovereign immunity and, without board approval, CNI's sovereign immunity remained intact. 585 F.3d at 922. ¶17 Courts have rejected equitable estoppel as a basis for waiver of tribal sovereign immunity on the grounds that unauthorized actions of officers and employees do not waive immunity or confer jurisdiction on a court in the absence of an express waiver, applying federal sovereign immunity principles to tribal sovereign immunity. See Native American Distributing v. Seneca-Cayuga Tobacco Company, 546 F.3d 1288, 1295 (10th Cir. 2008), citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148, 102 S. Ct. 894, 71 L. Ed. 2d 21 (1982). See also, Memphis Biofuels, LLC v. Chickasaw Nation Industries, Inc., 585 F.3d 917, 922 (6th Cir. 2009). ¶18 In the case at bar, the Tribe's Constitution provides for a Business Committee to act on behalf of the Tribe. The Business Committee passed a resolution pursuant to the Tribe's Constitution that requires Business Committee consent to waiver of sovereign immunity by resolution. Here, tribal law controls the way sovereign immunity can be waived by the Tribe. There is no express waiver of sovereign immunity by the Business Committee, nor is there a consent to such waiver by the Business Committee. The contracts do not provide for application of Oklahoma law, for binding arbitration of disputes or enforcement of arbitration decisions in any state or federal court with jurisdiction, such as were held to waive sovereign immunity in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 121 S. Ct. 1589, 149 L. Ed. 2d 623 (2001).4 ¶19 Plaintiffs ask us to conclude that, because the Business Committee granted authority to Chief Spicer to sign employment contracts with tribal employees for three year terms at their current positions and salaries, those contracts must have been approved and ratified in all particulars, including the limited waiver of sovereign immunity. We do not agree with plaintiffs' position. Federal law requires that the waiver of sovereign immunity be express and unequivocal; it cannot be implied. The Tribe's Constitution and By-Laws do not authorize the Chief to waive the Tribe's sovereign immunity. ¶20 Waiver of sovereign immunity was neither expressed nor consented to in the Business Committee's resolutions that authorized the Chief to sign the employment contracts. Neither of the resolutions expressly ratified the contracts that Chief Spicer entered into: Resolution #27-072607 only authorized the Chief to sign a contract with tribal employees for a three year term, in their present positions of employment and at their present salaries; Resolution #46-081407 ratified only the resolution, not the contracts. We must conclude that under these circumstances, there was no express and unequivocal waiver of the Tribe's sovereign immunity.5 ¶21 The judgment of the trial court is affirmed. ¶22 COLBERT, V.C.J., KAUGER, WINCHESTER, EDMONDSON, REIF, COMBS, GURICH, JJ. - Concur ¶23 WATT, J. - Concurring in Result. ¶24 TAYLOR, C.J., dissenting. There is a waiver of sovereign immunity that has now become inconvenient to the tribe. The tribe now wants to back out of an agreement it made with its own employees. After examining all the circumstances of this case, it is my view that sovereign immunity has been waived. FOOTNOTES 1 In that case we rejected the Tax Commission's argument that the corporation and the tribe should be treated as one because they were so closely related as to be indistinguishable. We said that the two entities were closely related but could not be considered one and the same in light of congressional intent in permitting incorporation of tribes. 839 P.2d at 183. See also Native American Distributing v. Seneca-Cayuga Tobacco Company, 546 F.3d 1288 (10th Cir. 2008). 2 The business committee was made up of: Paul Spicer, Chief; Katie Birdsong, 2nd Chief; Kay Ellison, Secretary/Treasurer; Sharon Winnie-Vann, first councilperson; Mike Jones, second councilperson; Patricia Armstrong, third councilperson; and Dennis Wadsworth, fourth councilperson. 3 Resolution #17-061507 authorized the Tribe to borrow money from Bank of Oklahoma and was styled: "To Borrow Up to Ten Million Dollars from Bank of Oklahoma." The terms of the contract were spelled out in the resolution and the Business Committee specifically waived the Tribe's immunity to the extent set out therein and authorized Chief Paul Spicer to negotiate and sign documents on behalf of the Tribe necessary to implement the loan. There, the resolution specifically stated that the Tribe's sovereign immunity was being waived pursuant to the provisions of Resolution #22-120303. 4 That case held that the tribe waived its immunity by expressly agreeing in the contract to arbitration and by agreeing that Oklahoma law would govern such disputes. The contract was a standard form agreement that was proposed by the tribe. Oklahoma's Uniform Arbitration Act provided that agreements that provided for arbitration in Oklahoma conferred jurisdiction on any court of competent jurisdiction in the state. The Supreme Court held that the contract's arbitration provision required arbitration of all disputes related to the contract, and by selecting Oklahoma law, the parties effectively consented to confirmation of the award in accordance with the Oklahoma Uniform Arbitration Act. 5 Because we find that the resolutions do not clearly and unequivocally waive the Tribe's sovereign immunity, we need not address Tribe's argument that the resolutions were not valid.

68225947-c003-4f71-85a4-c55d1a6293a2

Hamrick v. Oklahoma ex rel. Office of the Medical Examiner

oklahoma

Oklahoma Supreme Court

HAMRICK v. STATE ex rel. OFFICE OF THE CHIEF MEDICAL EXAMINER2011 OK 60Case Number: 109249Decided: 06/21/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MATTHEW V. HAMRICK, Plaintiff,v.STATE OF OKLAHOMA ex rel., OFFICE OF THE CHIEF MEDICAL EXAMINER, Defendant. FEDERAL CERTIFIED QUESTION ¶0 Invoking Oklahoma's Revised Uniform Certification of Questions of Law Act, REFORMULATED CERTIFIED QUESTION ANSWERED. Charles C. Vaught, Kevin S. Merritt, Armstrong & Lowe, P.C., Tulsa, Oklahoma, for Plaintiff,Kindanne C. Jones, Sandra J. Balzer, Susan K. Noland, Assistant Attorneys General, Oklahoma City, Oklahoma, for Defendant. REIF, J.: ¶1 Plaintiff, Matthew V. Hamrick, sued the State of Oklahoma ex rel., Office of the Chief Medical Examiner in the United States District Court for the Northern District of Oklahoma. He seeks recovery for wrongs he allegedly suffered during his employment with the Office of the Chief Medical Examiner. Plaintiff initially asserted seven claims against the State, grounded on both federal and state law. Plaintiff later dismissed all of the state law claims except his claim for unpaid wages under the Protection of Labor Act, ¶2 The State contested plaintiff's right to rely on section 165.9 as a basis to recover such relief. The State noted that the State is not included in the statutory definition of "employer" as used in sections 165.1 through 165.11. In response, plaintiff contended that the statutory definition of "employer" as used in sections 165.1 through 165.11 is broad enough to include the State and should be so construed to afford unclassified state employees, like plaintiff, a state law remedy to collect unpaid wages. Plaintiff pointed out that unclassified employees cannot pursue wage claims through the Merit Protection grievance process and will have no state law remedy to pursue a wage claim if the State is not treated as an employer under sections 165.1 through 165.11. ¶3 Citing the absence of precedential authority on the rights of unclassified state employees to pursue a claim for unpaid wages, the plaintiff and State jointly requested the federal court to certify a question of law to determine the applicability of section 165.9 to such a wage claim. The federal court granted the parties' request and inquired: "Does an unclassified state employee who alleges his employer failed to pay him wages have a private right of action under ¶4 The federal certification order set forth the following facts relevant to the certified question: Mr. Hamrick was employed by the Office of the Chief Medical Examiner (OCME) as an investigator in its Tulsa office from September 1, 2006, through February 10, 2010. Throughout his service as an investigator, Mr. Hamrick's employment status was that of a full time "unclassified" state employee. There is no dispute that during Mr. Hamrick's tenure with OCME, the agency's scheduling required that its investigators work day shifts in the office, overnight "on call" shifts, and weekend "on call" shifts on a rotating basis. During the time in question, a Tulsa investigator's scheduled office hours, combined with the hours the investigator was scheduled to be "on call," commonly exceeded forty (40) hours in a week. OCME compensate Mr. Hamrick and continues to compensate its investigators for the hours for which they are engaged to work and which time is recorded on their time sheets and/or daily activity logs. However, OCME does not pay investigators for the entire period during which they are "on call." Mr. Hamrick's responsibilities as an investigator OCME required him to drive a state vehicle to death scenes over which the agency exercised jurisdiction. OCME had in place a personnel policy and practice provision that provided that "[a]ny employee violating the provisions of this section (operation of state vehicle) may be subject to disciplinary action and/or termination and may be subject to fine or imprisonment in accordance with State Law." Employee Handbook, p. 39. Mr. Hamrick contends that OCME's "on-call" system is onerous that it has created an "engaged to wait" system and that he should be compensated for all time he was "on-call." Mr. Hamrick contends that OCME's practice of conducting performance reviews concerning an investigator's ability to respond to death calls within 15 minutes of receipt 95% of the time is evidence which supports this contention. OCME disputes that it created such a system and contends that the employees were "waiting to be engaged." Prior to initiating this action, Mr. Hamrick submitted a claim to OCME in which he contended that he had not been fully compensated by OCME for wages earned. Among the issues raised by Mr. Hamrick was his contention that he should be compensated for all hours he was "on call" as opposed to the hours he was actually engaged to work while on call. Upon receipt of his (and other) allegations, OCME unilaterally contacted the United States Department of Labor (USDOL) regarding the allegations. USDOL investigated Mr. Hamrick's allegations and as a result, OCME paid the gross amount of $727.19 for wages owed. Mr. Hamrick contends, however, that this amount is insufficient and that the amount owed to him is far greater that $727.19. Mr. Hamrick further contends that he was not given any opportunity to be heard before the USDOL, and has not ever been afforded the opportunity to be heard regarding his claim. In addition and prior to initiating this action, Mr. Hamrick submitted a complaint to the Oklahoma Merit Protection Commission (OMPC) regarding the type of leave he was required to take as a result of a family member's death. OCME and Mr. Hamrick engaged in mediation through OMPC and resolved Mr. Hamrick's complaint. There is no dispute, however, that OCME has no formal grievance procedure within the employee handbook. Mr. Hamrick has initiated an action against OCME alleging, inter alia, that OCME's failure to compensate him for every hour he is scheduled to be on-call is a violation of OKLA. STAT. tit. 40, § 165.1 et seq. Mr. Hamrick claims that denying a private right of action to "unclassified" state employees would violate the Oklahoma Constitution. OCME denies that it has failed to pay Mr. Hamrick wages and asserts that he does not have a private right of action under §§ 165.1 et seq. In particular, OCME argues that state agencies are excluded from the definition of "employer" in the administrative regulations implementing OKLA. STAT. tit. 40, § 165.1 et seq. Upon review of all the provisions of sections 165.1 through 165.11, we reformulate the question within the confines of the foregoing statement of facts to read: Can an unclassified state employee maintain a private right of action under ¶5 We recast the question because section 165.9 cannot be construed in isolation, but must be interpreted in context of the Protection of Labor Act as a whole. In this way, the full scope of a state employee's rights under these statutes can be addressed. This approach leads us to answer the reformulated question in the affirmative, except as to the recovery of liquidated damages. ¶6 As previously noted, the plaintiff asserts that the State Merit Protection grievance process is not available to him and other unclassified state employees to resolve a dispute with the State concerning unpaid wages for overtime. As a consequence, plaintiff contends that section 165.9 provides the only remedy for an unclassified state employee to pursue a claim for overtime allegedly worked, but not compensated. Plaintiff points out that section 165.9 provides, in pertinent part, that an action may be maintained by "an employee to recover unpaid wages and liquidated damages . . . for and in behalf of himself and . . . other employees similarly situated . . . ." In addition, section 165.1(4) defines wages to include "overtime pay." Furthermore, the term "employee" as used in sections 165.1 through 165.11 is defined to mean "any person permitted to work by an employer," § 165.1(2). ¶7 In response, the State notes that the State is not included in the definition of an "employer" as used in sections 165.1 through 165.11. ¶8 In review of sections 165.1 through 165.11, it is readily apparent that the Legislature intended to allocate certain rights and duties under the Act to parties that meet the special statutory definitions of "employer" and "employee." It is equally clear, however, that the Legislature imposed certain obligations on the State and granted certain rights to "state employees" apart from the special statutory definitions. As discussed more fully below, the Legislature made the State and state employees subject to section 165.2 which, in turn, allows state employees to enforce the provisions of section 165.2 as provided in sections 165.7(G) and 165.9. ¶9 Intent to make the State subject to section 165.2 is found in the statute's opening sentence: "Every employer in this State shall pay all wages due the employees . . . on regular paydays designated in advance." Rather than make section 165.2 applicable to "an employer," which would indicate an employer as defined by section 165.1(1), the Legislature declared that "Every employer in this State" was subject to the command for payment of all wages due on regular paydays. Use of "every" means "any" and "all," and conveys a broad expansive meaning indicating inclusion is intended. Coffee v. Henry, ¶10 In addition to requiring regular paydays, section 165.2 further provides (1) "[t]he amount due such employee, shall be paid in lawful money," and (2) "[w]ith each payment of wages earned by such employee, the employer shall issue to such employee a brief itemized statement of any and all deductions therefrom." (Emphasis added.) The modifier "such" in this context means "being the same as what has been mentioned." 1284 Black's Law Dictionary (5th ed. 1979). Modifying the term "employee" with the word "such" indicates that these provisions refer to all employees previously mentioned, including "state employees." ¶11 In summary, the rights given State employees under section 165.2 are (1) payment of all wages due, (2) in lawful money, (3) at least once a month, (4) on a regular payday, and (5) receipt of an itemized statement of deductions. State employees who are aggrieved by the State's violation of such rights may bring an action to enforce these rights as provided in section 165.7(G): "[I]ndividuals who are aggrieved by violation of any provision of Sections 165.1 through 165.11 of [the Act] shall be entitled to bring an action . . . to enforce the provisions of such sections." ¶12 In addition, section 165.7(G) makes it clear that "[t]he remedies provided by sections 165.1 through 165.11 of [the Act] shall be in addition to and not in substitution for and in no manner impair other remedies." Both this Court and the Court of Criminal Appeals have concluded that unpaid wages are a debt arising out of contract. Reynolds v. Advance Alarms, Inc., ¶13 The contractual obligations of the State involving the payment of money may be enforced against the State in an ordinary action at law. U.C. Leasing, Inc. v. State Board of Public Affairs, ¶14 The terms of the State's obligation to pay overtime worked by both classified and unclassified employees are set forth in 70 O.S. Supp. 2010, § 840-2.15. Subsection (A) of this statute adopts "the minimum overtime entitlement provisions of the Fair Labor Standards Act and regulations promulgated thereunder except as [otherwise] provided [in subsections (B) through (E)]." For purposes of answering the certified question, we deem it unnecessary to determine whether any of the exceptions set forth in subsections (B) through (E) apply to plaintiff's claim. We also deem it is unnecessary to identify the specific provisions set forth in the Fair Labor Standards Act and implementing regulations that bear on the merits of plaintiff's claim. Plaintiff bears the burden in further proceedings to demonstrate how the facts of this case bring him within the provisions of the Fair Labor Standards Act. ¶15 While it is clear that an unclassified state employee can bring an action to recover all the wages due on regular paydays as provided in section 165.2, and can bring such action in a court of competent jurisdiction as provided in section 165.9, it is equally clear the Legislature did not include either the State or state employees within the liquidated damages provision of section 165.3. This statute states: A. Whenever an employee's employment terminates, the employer shall pay the employee's wages in full, less offsets and less any amount over which a bona fide disagreement exists, as defined by Section 165.1 of this title, at the next regular designated payday established for the pay period in which the work was performed either through the regular pay channels or by certified mail postmarked within the deadlines herein specified if requested by the employee, unless provided otherwise by a collective bargaining agreement that covers the employee. B. If an employer fails to pay an employee wages as required under subsection A of this section, such employer shall be additionally liable to the employee for liquidated damages in the amount of two percent (2%) of the unpaid wages for each day upon which such failure shall continue after the day the wages were earned and due if the employer willfully withheld wages over which there was no bona fide disagreement; or in an amount equal to the unpaid wages, whichever is smaller; provided, however, that for the purpose of such liquidated damages such failure shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he thereafter shall have been adjudicated bankrupt upon such petition. (Emphasis added.) ¶16 With one exception, the references to "employer" and "employee" in section 165.3 are modified only by the articles "an" and "the." This choice of language indicates that the Legislature was using the terms employer and employee as specially defined in section 165.1. The Legislature has also generally provided that "[w]henever the meaning of a word or phrase is defined by any statute, such definition is applicable to the same word or phrase whenever it occurs, except where a contrary intention plainly appears." ¶17 Finding no intent to make either the State or state employees subject to section 165.3, we must conclude that an unclassified state employee cannot recover liquidated damages in connection with a claim for unpaid wages. The language in section 165.9 authorizing an "[a]ction to recover unpaid wages and liquidated damages" does not make liquidated damages a remedy generally available in an action brought under section 165.9, but allows the recovery of liquidated damages, only if such are otherwise provided by section 165.3. ¶18 In conclusion and in answer to the reformulated certified question, we hold an unclassified state employee can bring an action under sections 165.7(G) and 165.9 of the Protection of Labor Act to recover all wages, including overtime, that were due but not paid, on one or more regular paydays as provided by section 165.2. We further hold that an unclassified state employee cannot recover liquidated damages as provided in section 165.3 based on any such unpaid wages, and therefore the language in section 165.9 allowing recovery of liquidated damages does not apply to an action brought by an unclassified state employee. REFORMULATED FEDERAL CERTIFIED QUESTION ANSWERED. ¶19 TAYLOR, C.J., COLBERT, V.C.J., WINCHESTER, EDMONDSON, REIF, COMBS, and GURICH., JJ., concur. ¶20 KAUGER and WATT, JJ., concur in part; dissent in part. FOOTNOTES 1 The State of Oklahoma also points out that the Commissioner of Labor expressly excluded the State of Oklahoma from the definition of an "employer" subject to the Commissioner's administrative process for collecting unpaid wages. See Okla. Admin. Code 380:30-1-1. Pursuant to 40 O.S.2001, § 165.7, the Commissioner "may provide, for an administrative proceeding" in any case "where a civil action may be brought for the collection of a wage claim." (Emphasis added). The Commissioner's exclusion of wage claims involving particular employers, such as the State, from the administrative process is a matter of discretion, and has no bearing on whether such employer is otherwise liable for an action at law under §§ 165.7(G) or 165.9. WATT, J., with whom Kauger, J. joins, concurring in part and dissenting in part: ¶1 I agree with the majority's determination that an unclassified employee can maintain an action pursuant to the Protection of Labor Act (Labor Protection Act), 40 O.S. 2001 §165.1 et seq. I express no opinion on whether the same employee may be entitled to liquidated damages pursuant to 40 O.S. 2001 §165.91 allowing an employee to recover both unpaid wages and liquidated damages. I dissent on two grounds. First, the majority has not merely "reformulated" the question but has gone outside of the question certified to promulgate an advisory opinion on the issue of liquidated damages. Second, the majority's opinion appears internally inconsistent in its treatment of the terms "employee" and "employer" within the confines of the Labor Protection Act, ignoring long-established rules of statutory construction. ¶2 1) The majority's pronouncement on the liquidateddamages issue amounts to nothing more thana prohibited advisory opinion. ¶3 It is not this Court's province to intrude upon the certifying court's decision making process.2 Although we are given the authority to reformulate questions certified by 20 O.S. 2001 §1602.1,3 we should not utilize this tool in the guise of issuing an advisory opinion or to address a hypothetical question4 especially in light of our well-established rule prohibiting such pronouncements.5 This rule against promulgating advisory opinions does not change merely because the cause arises out of a federal certified question.6 Furthermore, we have found unconvincing arguments that such questions should be answered simply because they will settle an undetermined area of state law that will affect the cause and all others with similar issues.7 ¶4 The majority ignores rules of statutoryconstruction by its treatment of "employer" and"employee" differently in different sections ofthe Labor Protection Act producing aninternally inconsistent document. ¶5 The majority treats the defined terms "employer" and "employee" in one manner for determining the issue as to whether the unclassified employee may maintain an action under the Labor Protection Act and in a different manner altogether in relation to whether the same employee may recover liquidated damages for violation of the Act. As early as 1921, the Court recognized the general rule that where the same word is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning is clear, this meaning will be attached to it elsewhere.8 Some nineteen years later, the Court stated that where a word is defined in a statute, "it will be presumed that it was used in that same sense throughout the section."9 CONCLUSION ¶6 No basis exists for the majority's gratuitous answer on the liquidated damages issue. It can be considered nothing more than a prohibited advisory opinion on an issue this Court was not asked to address. Furthermore, in promulgating the advisory opinion, it is likely that this Court has ended the federal litigation. Finally, the majority ignores long-established rules of statutory construction by treating the same defined words within the Labor Protection Act differently in various sections of the Act. ¶7 I concur to the extent that the majority determinates that an unclassified employee can maintain an action pursuant to the Protection of Labor Act (Labor Protection Act), 40 O.S. 2001 §165.1 et seq. I concur in this portion of the opinion because it addresses the question asked and properly states the current state of the law in Oklahoma. I dissent from the portion of the opinion which addresses the issue of liquidated damages because it unnecessarily goes outside the parameters of the question certified rendering an advisory opinion on an issue of first impression in our jurisdiction. FOOTNOTES 1 Title 40 O.S. 2001 §165.9 providing in pertinent part: "A. Action by an employee to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and on behalf of all employees similarly situated for such wages. . . ." 2 Ball v. Wilshire Ins. Co., 2009 OK 38, ¶9, 221 P.3d 717. 3 Title 20 O.S. 2001 §1602.1 providing: "Power to Reformulate Question. The Supreme Court of this state may reformulate a question of law certified to it." 4 Comment to Uniform Certification of Questions of Law Act, §4 (2008) providing in pertinent part: "This section is new and authorizes the receiving court to 'reformulate' the certified question. Requiring a question to be answered precisely as it is certified imposes a counterproductive rigidity that could decrease the utility of the answer received. Permitting the receiving court to amend the certified question freely may also adversely affect the utility of the answer and result in the issuance of an advisory opinion. . . ." [Emphasis supplied.] At least one Court limits its answers to federal certified questions confining them strictly to the questions certified. See, Western Savings & Loan Ass'n v. CFS Portales Ethanol I, Ltd., 107 N.M. 143, 754 P.2d 520 (1988). 5 Matter of Adoption of Baby G., 2008 OK 92, ¶7, 195 P.3d 377 [Authored by Reif, J. and recognizing that this Court does not sit to decide hypothetical issues or to give advisory opinions about issues not yet in controversy.]; Knight v. Miller, 2008 OK 81, ¶8, 195 P.3d 372; Scott v. Peterson, 2005 OK 84 ¶27, 126 P.3d 1232; Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, n. 3, 102 P.3d 133; City of Midwest City v. House of Realty, Inc., 2004 OK 56, n. 14, 100 P.3d 678; Tulsa County Budget Bd. v. Tulsa County Excise Bd., 2003 OK 103, n. 31, 81 P.3d 662. 6 Ball v. Wilshire Ins. Co., see note 2, supra [Reif, J. concurring in the majority opinion.]. 7 Id. 8 Walton v. Donnelly, Com'r of Finance and Accounting, 1921 OK 258, ¶0, 201 P. 367. 9 Roberts v. Newell, 1940 OK 15, ¶5 101 P.2d 824.

f3c08e59-be45-4f2e-9459-92a5f505d5d3

Durham v. McDonald's Restaurants of Oklahoma, Inc.

oklahoma

Oklahoma Supreme Court

DURHAM v. MCDONALD'S RESTAURANTS OF OKLAHOMA, INC.2011 OK 45Case Number: 108193Decided: 05/24/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CAMRAN DURHAM, Plaintiff/Appellant,v.MCDONALD'S RESTAURANTS OF OKLAHOMA, INC., an Oklahoma Corp., Defendant/Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV,ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY,STATE OF OKLAHOMAHONORABLE DEBORAH C. SHALLCROSS, TRIAL JUDGE ¶0 Former employee brought suit in federal court against his former employer alleging claims under the Americans with Disabilities Act, along with state law claims for assault and battery and intentional infliction of emotional distress. These claims all arose from an incident in which employer's manager allegedly denied employee permission to take prescription medication and allegedly called employee a "f...ing retard." The federal court granted a summary judgment in favor of employer on the ADA claims ruling, inter alia, that the conduct of employer's manager toward employee was "not severe." The federal court also declined to continue jurisdiction of the state claims. Thereafter, employee refiled the claim for intentional infliction of emotional distress in state district court. On summary judgment, the district court ruled employee was precluded from recovery for intentional infliction of emotional distress based on the federal court ruling that the conduct of employer's manager towards employee was "not severe" and, therefore, was not extreme and outrageous. The Court of Civil Appeals affirmed. This Court has previously granted certiorari. Upon review, we vacate the opinion of the Court of Civil Appeals, reverse the trial court summary judgment and remand for further proceedings. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;SUMMARY JUDGMENT REVERSED ANDREMANDED FOR FURTHER PROCEEDINGS. Stephen J. Modovsky, Sidney A. Martin, MODOVSKY LAW OFFICE, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant,Matthew C. Kane, RYAN WHALEY COLDIRON SHANDY, PLLC, Oklahoma City, Oklahoma, for Defendant/Appellee. REIF, J.: ¶1 This case concerns a summary judgment granted to defendant McDonald's Restaurants of Oklahoma, Inc., on a claim for intentional infliction of emotional distress filed by former employee, Camran Dunham. Plaintiff Dunham alleged that his supervising manager denied three requests to take prescription anti-seizure medication and called plaintiff a "f...ing retard" in the course of denying the last request. Plaintiff related that he was sixteen at the time and the manager's refusals caused him to fear he would suffer a seizure. He stated he left work crying and did not return. These events allegedly occurred on June 1, 2006. ¶2 McDonald's did not controvert plaintiff's account of this incident on summary judgment. Instead, McDonald's argued that the manager's conduct was not "extreme and outrageous" conduct required for a claim for intentional infliction of emotional distress. McDonald's relied on an earlier federal court disposition of claims made by plaintiff under the Americans with Disabilities Act. In denying plaintiff recovery on the ADA claims, the federal court determined that the manager's conduct was "not severe." ¶3 The trial court concluded that the federal court disposition constituted an adverse preclusive determination of the "extreme and outrageous" element of plaintiff's claim for intentional infliction of emotional distress. The Court of Civil Appeals agreed and affirmed. For the reasons that follow, we disagree, vacate the Court of Civil Appeals opinion and reverse the summary judgment. I. ¶4 In order to prove the tort of intentional infliction of emotional distress or outrage, a plaintiff must prove each of the following elements: 1) the alleged tortfeasor acted intentionally or recklessly; 2) the alleged tortfeasor's conduct was extreme and outrageous; 3) the conduct caused the plaintiff emotional distress; and 4) the emotional distress was severe. Computer Publications, Inc. v. Welton, ¶5 Issue preclusion prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies. Nealis v. Baird, ¶6 The Court of Civil Appeals found that the federal court had necessarily determined that the manager's conduct was "not severe" in disposing of the federal ADA claims. Noting that Black's Law Dictionary 1233 (5th ed. 1979) treats "extreme" as a synonym for "severe," the Court of Civil Appeals drew the logical conclusion that conduct which is not severe cannot be "extreme and outrageous" under the applicable law. ¶7 The chief problem we have with this analysis is that it was not necessary for the federal court to make any determination about the character of the manager's conduct in disposing of the federal litigation. All of plaintiff's claims under the Americans with Disabilities Act, including the hostile working environment and constructive discharge claim, were dependent upon plaintiff's status as a "disabled person." The federal court determined the plaintiff was not a disabled person. ¶8 Plaintiff's status as a disabled person was the linchpin of federal question jurisdiction and the determination of this issue adversely to plaintiff ended the court's jurisdiction to decide any other issue concerning the ADA claims. ¶9 When this Court reviews a claim for intentional infliction of emotional distress that has been rejected by the Court of Civil Appeals, we will make the "gatekeeper" or threshold determination of whether the defendant's conduct may reasonably be regarded as extreme and outrageous. Miller, II. ¶10 In its motion for summary judgment, McDonald's also asserted that plaintiff cannot prove the severe emotional distress element of intentional infliction of emotional distress. The motion pointed out that the trial court could make the "gatekeeper" or threshold determination concerning this element based on the federal court disposition of the ADA claims. In granting the motion, the trial court generally ruled that "Issue preclusion prevents Plaintiff from relitigating . . . the fact issue [that] (Plaintiff admitted the conduct was 'no big deal')." ¶11 On appeal, the Court of Civil Appeals concluded that the trial court regarded this "fact issue" as dispositive of the severe emotional distress element of the tort. In its independent review of the federal court disposition, however, the Court of Civil Appeals found the federal court did not determine whether plaintiff suffered severe emotional distress. The Court of Civil Appeals ruled "the [trial] court erred in applying issue preclusion to the [severe emotional distress] element of the tort of outrage." ¶12 The Court of Civil Appeals also ruled summary judgment was not properly granted on the extreme emotional distress element of the tort, finding the existence of a "substantial controversy on that very issue." Our review of plaintiff's evidentiary materials leads us to the same conclusion. ¶13 Intentional infliction of emotional distress does not provide redress for every invasion of emotional serenity or every anti-social act that may produce hurt feelings. Id. at ¶ 33, 956 P.2d at 900. While emotional distress can include all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea, it must be so severe that no reasonable person could be expected to endure it. Computer Publications, ¶14 Although the Court of Civil Appeals concluded that there was a "substantial controversy" concerning the severity of plaintiff's emotional distress, the Court of Civil Appeals did not perform a "gatekeeper" assessment of the evidentiary materials. This omission leaves that task for this Court to perform. ¶15 At the time the manager refused permission to take the anti-seizure medicine, plaintiff Durham related he "was getting scared he might die [or] he could bite off his tongue or fall and hurt himself." After the manager called him a "f...ing retard," plaintiff ran out the door crying. As a consequence of this treatment, plaintiff Durham stated he became "withdrawn" and "a recluse." He recounted that "[h]e felt he couldn't do anything [and] was afraid he would suffer the same experience at another job." His mother related he "wouldn't go outside, slept all day and had to be home schooled." She stated he "became depressed and introverted." She reported "he was no longer active [and] lost interest in everything." Plaintiff believed a school friend who worked at McDonald's told other school friends about the incident and they began calling plaintiff a "f...ing retard" and teased him by saying, "I hear you can't even keep a job at McDonald's because you're a f...ing retard." ¶16 Viewing the evidentiary materials in a light most favorable to plaintiff Durham, ¶17 Based on the foregoing, we hold the trial court erred in granting summary judgment in favor of defendant McDonald's Restaurants of Oklahoma, Inc., on plaintiff's claim for intentional infliction of emotional distress. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;SUMMARY JUDGMENT REVERSED ANDREMANDED FOR FURTHER PROCEEDINGS. ¶18 COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, REIF, and GURICH, JJ., concur. ¶19 TAYLOR, C.J., WINCHESTER, and COMBS, JJ., dissent. FOOTNOTES 1 "Extreme and outrageous" conduct, requires the existence of conduct so extreme in degree as to go beyond all possible bounds of decency, and which is viewed as atrocious and utterly intolerable in a civilized community. Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 1996 OK 141, ¶15, 916 P.2d 241, n.25. In general, a defendant's conduct must be such that an average member of the community would exclaim, "Outrageous!" Computer Publications, 2002 OK 50 at ¶ 9, 49 P.3d at 735. 2 Federal question jurisdiction involves a claim "arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331 (1976). To establish federal question jurisdiction, a federally created right or immunity must be an essential element of a plaintiff's cause of action. Gully v. First National Bank, 299 U.S. 109, 112 (1936). The ADA prohibits employers from discriminating against individuals on the basis of disability. Doyal v. Oklahoma Heart, Inc., 213 F.3d 494, 495 (10th Cir. 2000). To maintain a claim under the ADA, a plaintiff must be "a disabled person as defined by the ADA." Id. "Disability is a term of art under the ADA . . . defin[ing] disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. A federal court lacks subject matter jurisdiction under the ADA where the plaintiff's alleged disability is not covered by the ADA. Ankus v. GEICO Insurance Co., 69 Fed. Appx. 770, 2003 WL 21461849 (7th Cir. 2003). 3 Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. 4 If a reasonable person might reach a different conclusion from the facts than that suggested by the motion for summary judgment, granting summary judgment would be improper. Copeland v. Tela Corp., 1999 OK 81, ¶ 4, 996 P.2d 931, 933.

a901a055-0fb5-4839-8d8e-665e6a7a6234

Oklahoma Publishing Co. v. Oklahoma

oklahoma

Oklahoma Supreme Court

OKLA. PUBLIC EMPLOYEES ASSOC. v. STATE ex rel. OKLA. OFFICE OF PERSONNEL MANAGEMENT2011 OK 68Case Number: 108839; No. 108841Decided: 06/28/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellant,v.STATE OF OKLAHOMA ex rel. OKLAHOMA OFFICE OF PERSONNEL MANAGEMENT, Defendant/Appellee. OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellant,v.STATE OF OKLAHOMA ex rel. OKLAHOMA OFFICE OF STATE FINANCE, Defendant/Appellee. and OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellee and,STATE OF OKLAHOMA ex rel. OKLAHOMA OFFICE OF PERSONNEL MANAGEMENT, Defendant/Appellee and,OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellee and,STATE OF OKLAHOMA ex rel. OKLAHOMA OFFICE OF STATE FINANCE, Defendant/Appellee,v.WORLD PUBLISHING COMPANY and THE OKLAHOMA PUBLISHING COMPANY, Intervenors/Appellants. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 The Oklahoma Publishing Company (Oklahoman) and World Publishing Company (Tulsa World) (collectively, publishers), filed open records requests with the Office of Personnel Management (OPM) and the Office of State Finance (OSF). Both the Oklahoman and Tulsa World sought release of birth dates of all state employees. In addition, the Tulsa World requested employee identification numbers. The Oklahoma Public Employees Association (OPEA) filed two suits against OPM and OSF, respectfully. Both petitions requested declaratory judgment and injunctive relief barring the release of employees' birth dates. The second suit also sought to bar employee identification numbers from disclosure. The district court consolidated the causes. All parties filed motions for summary judgment. Relying on an opinion of the Oklahoma Attorney General (AG), the trial court sustained OPEA's and OPM's motions. It ordered that: state agencies be given sixty (60) days notice to report their decisions on whether disclosure of date of birth requests would be a clearly unwarranted invasion of personal privacy pursuant to AFFIRMED. Kevin R. Donelson, Carole L. Houghton, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Oklahoma Public Employees Association,Stephen J. Krise, Oklahoma Office of Attorney General, Oklahoma City, Oklahoma, for State ex rel. Oklahoma Office of Personnel Management and Oklahoma Office of State Finance,Michael Minnis, Doerner, Saunders, Daniel & Anderson, L.L.P., Oklahoma City, OK, and S. Douglas Dodd, Tulsa, Oklahoma, for the Oklahoma Publishing Company d/b/a The Oklahoman,J. Schadd Titus, Titus Hillis Reynolds Love Dickman & McCalmon, Tulsa, Oklahoma, for World Publishing Company d/b/a Tulsa World,S. Douglas Dodd, Doerner, Saunders, Daniel & Anderson, L.L.P. Tulsa, Oklahoma, for Amici Curiae Griffin Television OKC, LLC, Griffin Television Tulsa, LLC, Oklahoma Press Association, Reporters Committee For Freedom of the Press, and FOI Oklahoma,Gary J. James, Gary J. James & Associates, P.C., Oklahoma City, Oklahoma, for Oklahoma State Troopers Association,Wellon B. Poe, Joseph A. Claro, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Oklahoma Department of Public Safety,Thomas E. Prince, Prince Law Office, P.C., Edmond, Oklahoma, for Amicus Curiae, CompSource Oklahoma,Robert D. Nelon, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden and Nelson, Oklahoma City, Oklahoma, for Amici Curiae Local TV, LLC d/b/a KFOR-TV (Channel 4) Oklahoma City, Ohio/Oklahoma Hearst Television, Inc. d/b/a KOCO-TV (Channel 5) Oklahoma City; Sinclair Broadcast Group, Inc. d/b/a KOKH-TV (Channel 25) Oklahoma City, Scripps Media, Inc. d/b/a KJRH-TV (Channel 2) Tulsa, KTUL, LLC d/b/a KTUL-TV (Channel 8) Tulsa, Oklahoma Association of Broadcasters, Investigative Reporters and Editors, Inc., Radio Television Digital News Association,Nancy Pellow, Oklahoma City, Oklahoma, Pro Se. PER CURIUM: ¶1 Although the above styled and numbered causes were consolidated in the trial court, they were appealed under separate numbers. On October 26, 2010, an order issued in case No. 108,841 making the causes companion cases for purposes of the appeal and requiring that separate records be filed. Today, we withdraw our order of October 26th and consolidate the matters for resolution by a single opinion. ¶2 One first impression issue is common to both causes: whether public employees' dates of birth are open records, subject to public disclosure, under the Open Records Act. The second first impression issue, raised only in cause No. 108,841, is whether employee identification numbers are also public records which may be released. Both questions require us to consider whether the information release would be a "clearly unwarranted invasion" of Oklahoma's public service, state employees' personal privacy under RELEVANT FACTS AND PROCEDURAL BACKGROUND ¶4 In response to a request by Senator Debbe Leftwich, the AG issued an opinion on December 8, 2009. The opinion provides that: 1) a public body has discretion to determine that disclosing a personnel record indicating the date of birth of the public employee is an unwarranted invasion of the employee's personal privacy under the Open Records Act, ¶6 From July through September, 2010, all parties filed for summary judgment. The trial court sustained the summary judgment motions of OPM and OSF in an order filed on September 21st. It found that: employee identification numbers were not subject to disclosure by any state agency; the Attorney General correctly stated the law regarding the release of state employees' birth dates requiring a balancing test to determine if such a release amounted to an unwarranted invasion of personal privacy; and utilization of the balancing test did not violate the equal protection clause. The trial court also determined that the records of legislative staff are protected from release by PRELIMINARY CONSIDERATIONS ¶8 Two preliminary issues which must be considered before we may determine the primary questions presented: whether the release of birth dates and employee identification numbers constitutes a "clearly unwarranted invasion of personal privacy" within the meaning of ¶9 1) Title 52 O.S. Supp. 2005 §24A.7(A)2 contains a non-exclusivelist of examples of information, release of which, the Legislatureconsiders to be a clearly unwarrantedinvasion of State employees' personal privacy. ¶10 The OPEA contends that the birth dates and employee identification numbers of state employees are exempt from disclosure pursuant to ¶11 In determining whether a statute applies to a given set of facts, we focus on legislative intent ¶14 Undoubtedly, the Legislature provided examples of information in ¶15 2) Where a claim is made that disclosure of informationunder 52 O.S. Supp. 2005 §24A.7(A)(2) would constitutea clearly unwarranted invasion of personnel privacy, application of a case-by-case balancing test is utilizedto determine whether the information is subject to release. ¶16 The OPEA and OSF advocate the adoption of a balancing test for determination of whether birth dates and employee identification numbers are subject to release under the Open Records Act. Under such a test, the public body must weigh the employees' interest in non-disclosure against the public's interest in obtaining the information. ¶17 The publishers argue that application of a balancing test to determine whether a public employee's personal information outweighs the public's right to know is inappropriate. They contend that, if such a test is utilized, the news-gathering functions under the First Amendment would greatly overcome only a slight imposition on the personal privacy of public employees. The publishers point to a Court of Criminal Appeals' decision and to a Court of Civil Appeals' opinion providing that no balancing test may be utilized as support for their allegations. Those cases and the publishers' assertions are unconvincing. ¶18 Two Oklahoma cases support the contentions that utilization of a balancing test to determine whether employee birth dates or identification numbers are subject to release under the Open Records Act is inappropriate. Nevertheless, at best, those decisions are persuasive only and do not bind our independent review of the issue. ¶19 Nichols v. Jackson, ¶20 The Criminal Court held that the First Amendment right of access by the press to non-confidential court records precluded wholesale closure of the proceedings or sealing of the records. In reaching this result, provisions of the Open Records Act were considered. Relying on a Court of Civil Appeals' case, State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, ¶21 In the same breath that the Court of Criminal Appeals indicated no balancing test would be allowed, it stated: The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given. . . . However, such statutory provisions are always subject to interpretation to ensure compliance with constitutionally guaranteed rights. [Citations omitted. Emphasis supplied.] Thereafter, in answering the question certified, the Criminal Court made it clear that it had, despite its pronouncement concerning Migliaccio, balanced Nichols' rights to counsel, due process, and fair trial against the public's right to know. The opinion provides in pertinent part: The issues of closure of hearings and the sealing or [sic] records is a question of law, which in each instance is driven by the facts and circumstances of the particular case. The issue cannot be answered in a carte blanche approach and should be addressed on an ongoing basis based upon the current status of the proceedings. In Press-Enterprise Co. v. Superior Court of California for Riverside County, ¶22 The Court of Criminal Appeals has exclusive appellate jurisdiction over criminal cases. ¶24 The AG recommended public bodies utilize a balancing test weighing the public's right to know against the employee's right to privacy in determining whether public employees' birth dates should be released. In analyzing the weight to be given to the Attorney General's opinion, we note that, like opinions of the Court of Criminal Appeals and the Court of Appeals, the writings are considered as persuasive authority. Here, however, the Attorney General's analysis carries more weight in determining the issues before the Court. It does so because the Legislature has not acted since the opinion was promulgated. Undoubtedly, it did not do so because it understood that this Court considers the Legislature's silence as acquiescence or approval of the law as expounded in an Attorney General opinion. ¶25 The United States Supreme Court has recognized the privacy interest in keeping personal facts away from the public eye. It has also acknowledged that, in some instances, the duty to avoid unwarranted disclosures is rooted in the Constitution. ¶26 The Federal Freedom of Information Act (FOIA) contains almost identical language to Oklahoma's Open Records Act providing that "files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" may not be released for public scrutiny. In considering the federal act's language, the United States Supreme Court has determined that such statutory language requires the implementation of a balancing test where the individual's right to privacy is weighed against the public's right to know. ¶27 A number of other federal and state courts considering statutory language similar to that found in ¶28 We find the analysis of the Supreme Court and other jurisdictions with statutory language similar to that found in 52 O.S. Supp. 2005 §24A.7(A)(2) persuasive. Therefore, we align ourselves with those courts and with the reasoning of the Attorney General and determine that where a claim is made that disclosure of information under 52 O.S. Supp. 2005 §24A.7(2)(2) would constitute a clearly unwarranted invasion of personal privacy, application of a case-by-case balancing test should be utilized to determine whether personal information is subject to release. ¶29 Under the facts presented,where significant privacy interests are at stakewhile the public's interest either in employeebirth dates or employee identification numbersis minimal, release of such information "would constitute a clearly unwarranted invasion of personal privacy" under ¶30 The Supreme Court has held that information such as place of birth, date of birth, date of marriage, employment history, and comparable data are protected from disclosure as matters which constitute a clearly unwarranted invasion of personal privacy.35 The vast majority of courts considering the issue of whether birth dates should be excluded from public disclosure under statutory language similar to that found in 51 O.S. Supp. 2005 §24A.7(A)(2) and in the FOIA align themselves with the Supreme Court's reasoning and hold that "disclosure would constitute a clearly unwarranted invasion of personal privacy."36 ¶31 Similarly, employee identification numbers, when balanced against the public's right to know, have been determined to be information whose release would constitute a clearly unwarranted invasion of personal privacy.37 Such information has been found to provide little, if any, knowledge to the public which would provide a better understanding of routine day-to-day governmental operations.38 Publication of the numbers has been considered to be highly offensive, because the disclosure could lead to public scrutiny of individuals concerning information unrelated to any governmental operation while constituting impermissible invasions of privacy.39 Furthermore, as has been argued here, public employees' identification numbers may provide unauthorized access to information contained on government computers.40 Finally, utilization of employee identification numbers has been shown to provide additional insight into financial dealings leaving individuals subject to identity theft.41 ¶32 Since September 11, 2001, the ramifications of identity theft have proven much more grave than previously thought. Identity theft, a huge problem in financial fraud and theft cases, now has implications for national security.42 The growing problem of identity theft is facilitated when birth dates are combined with other personal information.43 Simply combining the release of a person's age along with other factors may make the individual vulnerable to those targeting a certain age range for scams.44 With both a name and a birth date, one can obtain information about: an individual's criminal record; arrest record (which may not include disposition of the charges); driving record; state of origin; political party affiliation; social security number; current and past addresses; civil litigation record; liens; property owned; credit history; financial accounts; and quite possibly, information concerning an individual's complete medical and military histories; and insurance and investment portfolio.45 The release of a state employee's name along with an employee identification number may provide access to other exempt personal information.46 These same numbers may provide unauthorized access to information contained on government computers.47 ¶34 Although the publishers disclaim any intention of publishing the birth dates of State employees, they assert that providing the date of birth information is important to their ability to identify one state worker from another. This argument has been considered too "narrow and limited" on the public interest scale to tip the balance of interests in favor of disclosure. CONCLUSION ¶36 Openness in government is essential to the functioning of a democracy. The greatest threat to privacy comes from government in secret. ¶38 In enacting 51 O.S. Supp. 2005 §27A.7(A)(2), the Oklahoma Legislature sought to construct an exemption which would require a balancing of an individual's right of privacy against the preservation of the basic purpose of Oklahoma's Open Records Act. The device adopted to achieve that balance was the limited exemption where privacy was threatened for the clearly unwarranted invasion of personal privacy. ¶39 We determine that the legislative language utilized in COLBERT, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, COMBS, GURICH, JJ. - CONCUR TAYLOR, C.J., KAUGER, J. - DISSENT FOOTNOTES 1 Rule 1.27(d), Supreme Court Rules, 12 O.S. Supp. 2008 providing in pertinent part: ". . . The appellate court has the discretion sua sponte, or upon motion of a party, to consider any appeals including one or more appeals governed by Rule 1.36 as companion or consolidated appeals." [Emphasis in original.] 2 Title 51 O.S. Supp. 2005 §24 A. 7 providing in pertinent part: "A. A public body may keep personnel records confidential: . . . 2. Where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees; provided, however, that nothing in this subsection shall be construed to exempt from disclosure the degree obtained and the curriculum on the transcripts of certified public school employees. . . . D. Public bodies shall keep confidential the home address, telephone numbers and social security numbers of any person employed or formerly employed by the public body." 3 White v. Lim, 2009 OK 79, fn.5, 224 P.3d 679; Welch v. Crow, 2009 OK 20, ¶10, 206 P.3d 559; Stump v. Cheek, 2007 OK 97, ¶9, 179 P.3d 606; Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, ¶6, 73 P.3d 871. See also, Data Tree, LLC v. Meek, note 36, infra; Graham v. Alabama State Employees Ass'n, see note 57, infra. 4 Our decision today does not create a privacy interest in violation of 51 O.S. 2001 §24 A. 2 providing that the "Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the Oklahoma Open Records Act, establish any procedures for protecting any person from release of information contained in public records." We merely apply the exception, provided by the Oklahoma Legislature providing for refusing disclosure where a release would constitute a "clearly unwarranted invasion of personal privacy" pursuant to 51 O.S. Supp. 2005 §24A.7(A)(2), see note 2, supra. 5 A.G. Opin. 09-33. Although not relevant to the cause presented, the opinion also provides that: 1) a vital statistics record, such as a birth certificate, is confidential and may not be disclosed except in specific circumstances as provided by the Public Health Code but that these provisions do not make confidential the birth date of an employee of a public body that is contained in any record that is not a vital statistics record; 2) the Driver's Privacy Protection Act, 18 U.S.C. §§2721-2725, does not make the birth date of an employee of a public body confidential; and 3) a public body make keep confidential a record indicating an employee's name placed on administrative leave with pay if, under the body's personnel policies, the action constitutes neither a final or disciplinary action, nor a final action resulting in loss of pay, suspension, demotion of position, or termination pursuant to 51 O.S. Supp. §24A.7(B). The opinion also indicated that an agency could, but was not required to, give notice to employees allowing them to assert a privacy interest in the release of birth dates and employee identification numbers. CompSource contends that employees have no right to notice and an opportunity to object to a document's disclosure. This issue was considered in City of Lawton v. Moore, 1993 OK 168, 868 P.2d 609 holding that the Legislature had superseded by statute an earlier decision in Tulsa Tribune Co. v. Oklahoma Horse Racing Comm'n, 1986 OK 24, 735 P.2d 548. Under the version of the Open Records Act considered in Tulsa Tribune, we interpreted the Act, as then cast, to require custodians of public records to give notice and the opportunity to be heard to any person whose interests would be affected by disclosure of public records. In Moore, we acknowledged the change in statutory language following the decision in Tulsa Tribune providing that "public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act." Title 51 O.S. 2001 §24 A. 2. In consideration of this statutory change, still in effect today, we held that the Open Records Act did not grant public employees a right to notice and hearing, or any other procedural protection. Conversely, as Compsource recognizes, the public body must make the decision on disclosure. Just as the Open Records Act does not grant public employees procedural protections, it does not prohibit an agency from utilizing tools in its attempt to discern whether certain personal information should be released. In regard to the allegations that such notification efforts might treat individual employees differently creating an equal protection violation, we note only that, generally, this Court does not address a party's asserting vicariously the constitutional rights of others. Gens v. Cassidy School, 2008 OK 5, fn. 28, 177 P.3d 565; Barzellone v. Presley, 2005 OK 86, fn. 32, 126 P.3d 588; Forest Oil Corp. v. Corporation Comm'n, 1990 OK 58, ¶31, 807 P.2d 774. Furthermore, our determination that birth dates and employee identification numbers are not subject to release makes consideration of the constitutional argument unnecessary. 6 Nancy Pellow, the legislative staffer, appeared pro se. The Oklahoma State Troopers Association and the Oklahoma Department of Public Safety appeared as intervening plaintiffs. CompSource Oklahoma filed an amicus brief. 7 Title 51 O.S. Supp. 2005 §24 A. 3 providing in pertinent part: "As used in this act: . . . 2. 'Public body' . . . does not mean judges, justices, the Council on Judicial Complaints, the Legislature, or legislators . . ." This exception is qualified to the extent that records are kept for the receipt and expenditure of any public funds. See, 51 O.S. 2001 §24 A. 4. Intervenor Nancy Pellow claims that, as a Senate staff member, she is entitled to the protection of the Open Records Act legislative exemption. Our determination that birth dates and employee identification numbers are not subject to release here makes determination whether all legislative staff employees records are exempt from release under §24 A. 3, this note, supra, unnecessary. Nevertheless, we note that the Attorney General has determined that, except when the document is created by a third-party public body or official, the Open Records Act does not require legislators to disclose documents in their possession created by third parties. AG Opin. 08-19. Although we have not had occasion to determine whether the exemption for the Legislature and legislators extends to their staff, we have acknowledged the exemption and noted its application to judges and Justices, generally. Nichols v. Jackson, 2002 OK 65, ¶1(12), 55 P.3d 1044. Furthermore, in an Open Records Request to the Court directed at staff-produced documents, we determined that records of judges and Justices are specifically excluded from the requirements of the Open Meetings Act and that judicial privilege shields the internal decisional process of the Court and internal court documents prepared by court personnel. Wallace v. Honorable Daman H. Cantrell, No. 107,300, Order of October 1, 2009 relying on Goetz v. Crosson, 41 F.3d 800, 805 (2nd Cir. 1994), cert. denied, 516 U.S. 821, 116 S. Ct. 80, 133 L. Ed. 2d 39 (1995). 8 Title 51 O.S. Supp. 2005 §24 A. 7, see note 2, supra. 9 Title 51 O.S. Supp. 2005 §24A.7(D), see note 2, supra. 10 Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, ¶12, 184 P.3d 496; McClure v. ConocoPhillips Co., 2006 OK 42, ¶12, 142 P.3d 390; Nealis v. Baird, 1999 OK 98, ¶55, 996 P.2d 438. 11 Smicklas v. Spitz, 1992 OK 145, ¶8, 846 P.2d 362; Clifton v. Clifton, 1990 OK 88, ¶7, 801 P.2d 693; Fuller v. Odom, 1987 OK 64, P4, 741 P.2d 449. 12 Tyler v. Shelter Mut. Ins. Co., see note 10, supra; McSorley v. Hertz Corp., 1994 OK 120, ¶6, 885 P.2d 1343; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶8, 832 P.2d 834. 13 Hill v. Board of Education, see note 15, infra; Haney v. State, 1993 OK 41, ¶5, 850 P.2d 1087; Public Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶8, 842 P.2d 750. 14 Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082; Fuller v. Odom, see note 11, supra; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132. 15 See, Strong v. Laubach, 2004 OK 21, ¶11, 89 P.3d 1066; Hill v. Board of Education, 1997 OK 107, 1997 OK 111, ¶12, 944 P.2d 930. 16 Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995); Affiliated Mgt. Corp. v. State of Oklahoma ex rel. Oklahoma Tax Comm'n, 1977 OK 183, 570 P.2d 335. 17 Chicago Tribune Co. v. Board of Education of the City of Chicago, 332 Ill.App.3d 60, 265 Ill.Dec. 910, 773 N.E.2d 674 (2002), appeal denied, 201 Ill. 2d 562, 271 Ill.Dec. 923, 786 N.E.2d 181 (2002). 18 The term "may" is ordinarily construed as permissive while "shall" is commonly considered to be mandatory. MLC Mortgage Corp. v. Sun America Mortgage Co., 2009 OK 37, fn. 17, 212 P.3d 1199; See also, Osprey LLC v. Kelly-Moore Paint Co., Inc., 1999 OK 50, ¶14, 984 P.2d 194; Shea v. Shea, 1975 OK 90, ¶10, 537 P.2d 417. 19 Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir. 1981). 20 In re Mandel's Will, 143 N.Y.S.2d 339 (1955); Erwin v. Steele, 228 S.W.2d 882 (Tex.Civ.App. 1950); Charles Behlen Sons' Co. v. Richetts, 30 Ohio App. 167, 6 Ohio Law Abs. 543, 164 N.E. 436 (1928). 21 Chicago Tribune Co. v. Board of Education of the City of Chicago, see note 17, supra. 22 The Okla. Const. art. 7, §4 providing in pertinent part: "The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law. . . ." 23 In State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision v. Migliaccio, 1996 OK CIV APP 37, 917 P.2d 483 a physician was disciplined by the Board of Medical Licensure and Supervision, following convictions in relation to filing of fraudulent medical claims. After the convictions were reversed, the physician sought expungement or sealing of records related to the disciplinary action. The appellate court held that the Board had no authority to either expunge or seal the records documents its actions in the physician's case. In reaching its determination, the Court of Civil Appeals stated that the Open Records Act does not allow the court to balance the individual's interests in records remaining private against the public's interest in access to records. 24 The Okla. Const. art. 7, §4, see note 22, supra; Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶6, 184 P.3d 546; State v. Blevins, 1992 OK CR 4, ¶2, 825 P.2d 270. 25 The Okla. Const. art. 7, §4, see note 22, supra; Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, see note 24, supra. 26 Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. 2001, Ch. A5, App. 1; 20 O.S. 2001 §§30.5 and 30.14. 27 Holdings in cases released by the Court of Criminal Appeals are not binding upon this Court although the rules announced therein may be considered persuasive. One Chicago Coin's Play Boy Marble Board, No. 19771 v. State ex rel. Adams, 1949 OK 251, ¶9, 212 P.2d 129. 28 See, Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, note 24, supra. 29 National Cowboy Hall of Fame & Western Heritage Center v. State ex rel. Oklahoma Human Rights Comm'n, 1978 OK 76, ¶11, 579 P.2d 1276; Terry v. Edgin, 1977 OK 35, ¶9, 561 P.2d 60. 30 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 1480, 103 L. Ed. 2d 774 (1989); Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 872, 51 L. Ed. 2d 64 (1977). 31 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, see note 30, supra; Hines v. Commonwealth of Kentucky, see note 51, infra. 32 Department of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). 33 Oliva v. United States, see note 36, infra; Texas Comptroller of Public Accounts v. Attorney General of Texas, see note 36, supra; Data Tree, LLC v. Meek, see note 36, infra; Scottsdale Unified School District v. KPNX Broadcasting Co., 191 Ariz. 297, 955 P.2d 534 (1998); Kentucky Bd. of Examiners of Psychologists v. Courier- Journal & Louisville Times Co., 826 S.W.2d 324 (Ky. 1992); Versaci v. Superior Court, 127 Cal. App. 4th 805, 26 Cal. Rptr. 3d 92 (2005), rehearing denied (2005), review denied (2005); Chicago Tribune Co. v. Board of Educ. of the City of Chicago, see note 17, supra; Doe v. Registrar of Motor Vehicles, 26 Mass.App.Ct. 415, 528 N.E.2d 880; Mullin v. Detroit Police Dept., 133 Mich.App. 46, 348 N.W.2d 708 (1984). See also, Graham v. Alabama State Employees Ass'n, note 3, supra [Rejected balancing test but instituted similar test based on "rule of reason." But see, Tacoma Public Library v. Woessner, note 37, infra; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, 696 So. 2d 562 (La 1997). 34 Data Tree LLC v. Meek, see note 36, infra; Valentine v. Personnel Cabinet, see note 36, infra. 35 United States Dept. of Justice v. Reporters Committee for Freedom of the Press, see note 30, supra; United States Dept. of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982). See also, Sherman v. United States Dept. of the Army, 244 F.3d 357 (5th Cir. 2001). 36 Associated Press v. United States Dept. of Justice, see note 51, infra; Morley v. United States Central Intelligence Agency, 699 F. Supp. 2d 244 (D.C.C. 2010); Coleman v. Lappin, 680 F. Supp. 2d 192 (D.C.C. 2010); Salas v. Office of Inspector General, 577 F. Supp. 2d 105 (D.C.C. 2008); In Defense of Animals v. Nat'l Inst. of Health, 543 F. Supp. 2d 70 (D.C.C. 2008); Judicial Watch, Inc. v. Department of Justice, 361 U.S.App.D.C. 183, 365 F.3d 1108 (2004); Oliva v. United States, 756 F. Supp. 105 (E.D.N.Y. 1991); Texas Comptroller of Public Accounts v. Attorney General of Texas, ___S.W. 3d ___, 2010 WL 4910163, rehearing denied (2011); Data Tree, LLC v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005); Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999); Scottsdale Unified School Dist. v. KPNX Broadcasting Co., see note 33, supra; Valentine v. Personnel Cabinet, 322 S.W.3d 505 (Ky.App. 2010); Hearst Corp. v. State of New York, Office of State Comptroller, 24 Misc.3d 611, 882 N.Y.S.2d 862 (2009); Graham v. Alabama State Employees Ass'n, see note 57, infra; Garden Grove Police Dept. v. Superior Court, 89 Cal. App. 4th 430, 107 Cal. Rptr. 2d 642 (2001); Mullin v. Detroit Police Dept., see note 33, supra; Doe v. Registrar of Motor Vehicles, see note 33, supra. See also, Department of Justice v. Reporters Committee, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989); Justice v. Fuddy, ___ P.3d ___, 2011 WL 1338824 (Hawaii App.) [Citizen's strong desire to personally verify President's eligibility to hold office did not constitute "compelling circumstances affecting health or safety of any individual.]; Providence Journal Co. v. Kane, 577 A.2d 661 (R.I. 1990); Annot., "What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act?", 26 A.L.R.4th 666 (1983). 37 United America Financial, Inc. v. Potter, 531 F. Supp. 2d 29 (D.C.C. 2008); Judicial Watch, Inc. v. United States Dept. of Commerce, 337 F. Supp. 2d 146 (D.C.C. 2004); Tacoma Public Library v. Woessner, 90 Wash. App. 205, 951 P.2d 357 (1998) [Modified on rehearing on other grounds.]; Small v. Internal Revenue Serv., 820 F. Supp. 163 (D.N.J. 1992). See also, Painting & Drywall Work Preservation Fund, Inc. v. Department of Housing & Urban Development, 936 F.2d 1300 (D.C.Cir. 1991); Metropolitan Life Ins. Co. v. Usery, 426 F. Supp. 150 (D.C.C. 1976), cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed. 2d 238 (1977), aff'd, 736 F.2d 727 (1984); King County v. Sheehan III, 114 Wash. App. 325, 57 P.3d 307 (2002); F. Komuves, "We've Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers," 16 J. Marshall J. Computer & Info. L. 529 (1998). But see, Sun-Sentinel Co. v. United States Dept. of Homeland Security, 431 F. Supp. 2d 1258 (S.D.Fla. 2006), aff'd, 489 F.3d 1173 (11th Cir. 2007) [Employee identification numbers released for FEMA inspectors suspected of criminal activity. Factor of suspected activity sufficient to outweigh privacy interests.]. 38 Judicial Watch, Inc. v. United States Dept. of Commerce, see note 37, supra; Hale v. Department of Justice, 973 F.2d 894 (10th Cir. 1992). See also, S. Burgess, "Access to Federal Government Records Under FOIA," 05-12 Immigr. Briefings 1 (Dec. 2005). 39 King County v. Sheehan III, see note 37, supra; Tacoma Public Library v. Woessner, see note 37, supra. 40 King County v. Sheehan III, see note 37, supra. 41 State v. Stearns, 196 Or.App. 272, 101 P.3d 811 (2004). See also, United America Financial, Inc. v. Potter, note 37, supra; State v. Sharma, 216 Ariz. 292, 165 P.3d 693 (2007) [Individual utilized "scrambled" employee identification number along with other information to open bank accounts, obtain credit cards, and contract for utility services.]. 42 State v. Woodfall, 120 Hawaii 387, 206 P.3d 841 (2009). 43 See, Texas Comptroller of Public Accounts v. Attorney General, note 36, supra; Doe v. Conway, ___ S.W.3d ___, 2010 WL 4860373 (Ky.App. 2010). 44 Doe v. Registrar of Motor Vehicles, see note 36, supra. 45 Scottsdale Unified School Dist. v. KPNX Broadcasting Co., see note 36, supra. 46 Tacoma Public Library v. Woessner, see note 37, supra. 47 King County v. Sheehan III, see note 37, supra. 48 See, Alva State Bank & Trust Co. v. Dayton, 1988 OK 44, 755 P.2d 635. 49 Title 21 O.S. Supp. 2007 §1533.1 providing in pertinent part: "A. It is unlawful for any person to willfully and with fraudulent intent [sic] obtain the name, address, social security number, date of birth, place of business or employment, debt, credit or account numbers, driver license number, or any other personal identifying information of another person, living or dead, with the intent to use, sell or allow any other person to use or sell such personal identifying information to obtain or attempt to obtain money, credit, goods, property, or service in the name of the other person without the consent of the person. . . . E. Any person convicted of violating any provision of this section shall be guilty of identify theft. Identity theft is a felony offense punishable by imprisonment in the custody of the Department of Corrections for a term of not less than one (1) year nor more than five (5) years, or a fine not to exceed One Hundred Thousand Dollars ($100,000.00), or by both such fine and imprisonment. Restitution to the victim may be ordered in addition to any criminal penalty imposed by the court. . . ." 50 Clymer v. City of Cedar Rapids, see note 36, surpa; Hearst Corp. v. State, see note 36, supra. 51 United States Dept. of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 114 S. Ct. 1006, 127 L. Ed. 2d 325 (1994); Associated Press v. United States Dept. of Justice, 549 F.3d 62 (2nd Cir. 2008); Judicial Watch, Inc. v. Department of Justice, see note 36, supra; Tacoma Public Library v. Woessner, see note 37, supra; Scottsdale Unified School Dist. v. KPNX Broadcasting Co., see note 33, supra. See also, Hines v. Commonwealth, 41 S.W.3d 872 (Ky.App. 2001); Planned Parenthood Golden Gate v. Superior Court, 83 Cal. App. 4th 347, 99 Cal. Rptr. 2d 627, 642 (2000). 52 Kimberlin v. Department of Justice, 139 F.3d 944, 949 (D.C.Cir. 1998), cert. denied, 525 U.S. 891, 119 S. Ct. 210, 142 L. Ed. 2d 173 (1998); Coleman v. Lappin, 680 F. Supp. 2d 192, 199 (2010). 53Valentine v. Personnel Cabinet, see note 36, supra. 54 California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988). 55 Data Tree, LLC v. Meek, see note 36, supra. 56 C.B.S., Inc. v. Block, 42 Cal. 3d 646, 230 Cal. Rptr. 362, 725 P.2d 470 (1986). 57 Graham v. Alabama State Employees Ass'n, 991 So. 2d 710 (Ala.Civ.App. 2007). See also, State ex rel. Cartwright v. Oklahoma Industries Auth., 1981 OK 47, ¶14, 629 P.2d 1244. 58 United States Dept. of Defense v. F.L.R.A., see note 51, supra. See also, Department of Air Force v. Rose, see note 32, supra. 59 While the United States Supreme Court has expressed uncertainty regarding the precise bounds of the constitutional "zone of privacy," its existence is firmly established. At least two kinds of constitutionally-protected interests have been acknowledged. One is the interest in avoiding disclosure of personal matters. The other is the interest in independence in making certain kinds of decisions. The first of these is commonly referred to as "informational privacy." It is this aspect of privacy which is at issue here. In re Crawford, 194 F.3d 954 (9th Cir. 1999), cert. denied, 528 U.S. 1189, 120 S. Ct. 1244, 146 L. Ed. 2d 102 (2000); F. Chlapowski, "The Constitutional Protection of Informational Privacy, 71 B.U. L.Rev. 133 (1991). 60 In re Crawford, see note 59, supra; G. Barber, "Personal Information in Government Records: Protecting the Public Interest in Privacy," 25 St. Louis U. Pub. L.Rev. 63 (2006). 61 Title 52 O.S. Supp. 2005 §24A.7(A)(2), see note , supra. Although we reference federal jurisprudence, our decisions with regard to the state law questions are based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). KAUGER, J., dissenting, with whom Taylor, C.J., joins: ¶1 This is a matter of statutory construction. The statute involved is the human resources statute within the Open Records Act. Although the Legislature has amended 51 O.S. supp. 2005 §24 A. 7 three times since its inception in 1985, it has never chosen to include the date of birth.1 If the Legislature desires to do so, it certainly can.2 FOOTNOTES 1 Title 51 O.S. Supp. 2005 §24 A. 7D provides: D. Public bodies shall keep confidential the home address, telephone numbers and social security numbers of any person employed or formerly employed by the public body. The statute was enacted in 1985, and amended in 1990, 1994, and most recently in 2005. 2 The legislature included date of birth in the identity theft statute, 51 O.S. Supp. 2007 §1533.1A provides: A. It is unlawful for any person to willfully and with fraudulent intent obtain the name, address, social security number, date of birth, place of business or employment, debit, credit or account numbers, driver license number, or any other personal identifying information of another person, living or dead, with intent to use, sell, or allow any other person to use or sell such personal identifying information to obtain or attempt to obtain money, credit, goods, property, or service in the name of the other person without the consent of that person.

4ee98cde-0f06-4604-8ddc-3ff38206e58d

Lumber 2, Inc. v. Illinois Tool Works, Inc.

oklahoma

Oklahoma Supreme Court

LUMBER 2, INC. v. ILLINOIS TOOL WORKS, INC.2011 OK 74Case Number: 106409Decided: 07/06/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. LUMBER 2, INC., Plaintiff/Appellee, v. ILLINOIS TOOL WORKS, INC. d/b/a HOBART WELDERS and MILLER ELECTRIC MFG. CO., Defendant/Appellants, and DON MASSIE COMPANY, INC. d/b/a PREMIER SALES, Defendant. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Plaintiff sued Defendants for breach of contract, fraud, violations of the Oklahoma Antitrust Reform Act (OARA) 79 O.S. 2001 §§201-212, and violations of the Oklahoma Consumer Protection Act, 15 O.S. Supp. 2003, §§751-764.1 (OCPA). A jury verdict was returned in favor of Plaintiff, and money damages were awarded on its claims for breach of contract and for violations of the OARA and the OCPA. The trial court denied Defendant's motion for new trial. Defendant appealed, and the Court of Civil Appeals (COCA) affirmed the judgment on Plaintiff's breach of contract claim, but reversed it on the award of damages for the OARA and OCPA claims. Defendant filed its petition for writ of certiorari which was granted to consider an issue of first impression: whether plaintiff, as a retailer and purchaser of merchandise intended for resale in its business, is a "consumer" for purposes of the Act. OPINION OF COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF TRIAL COURT IS AFFIRMED IN PART AND REVERSED IN PART Mark K. Stonecipher, Lance E. Leffel, Oklahoma City, Oklahoma, for Plaintiff/Appellee, Robert D. Tomlinson, Jennifer C. Schnell, Oklahoma City, Oklahoma, Daniel Laytin, Chicago, Illinois, for Defendant/Appellant. OPINION WATT, Justice: ¶1 We granted the petition for writ of certiorari of Plaintiff/Appellee Lumber 2, Inc. (Lumber 2) to consider an issue of first impression in this Court: whether Lumber 2, as a retailer and purchaser of merchandise intended for resale in its business, is a "consumer" for purposes of the Oklahoma Consumer Protection Act, (OCPA), 15 O.S. 2003 §§751-764.1. PROCEDURAL BACKGROUND ¶2 Lumber 2 sued Defendant/Appellant Illinois Tool Works, Inc., d/b/a Hobart Welders and Miller Electric Mfg. Co. (ITW) and Don Massie Company, Inc., d/b/a Premier Sales, ¶3 ITW appealed, and on May 12, 2010, the Court of Civil Appeals (COCA) affirmed the judgment on Lumber 2's breach of contract claim. However, COCA reversed the judgment awarding money damages on Lumber 2's OCPA and OARA claims. Lumber 2 filed its petition for certiorari which we granted on October 12, 2010. We consider only the OCPA claims of Lumber 2. Lumber 2's OARA claims were adequately addressed and disposed of by COCA on review, and they remain undisturbed. FACTS ¶4 J.P. Fox is co-owner and general manager of Lumber 2, which is a retail home and ranch supply store. He and his father Jim Fox also own Fox Building Supply stores. Altogether, there are stores in five locations in the Oklahoma City, Oklahoma area. J.P. Fox and some company employees attended the Handy Hardware Show, a trade show in Houston, Texas, on September 5, 2003. They stopped at the "Hobart" booth of Defendant ITW where they found Scott Massie, a sales representative of ITW, and Dave Evans from the home office in Wisconsin. Fox had previously met Massie through his business. Massie and Evans showed Fox some new Hobart Champion 10,000 welder/generators ("Champ 10,000's) in which Fox had no interest because of the price. Massie and Evans asked if he would be interested in reconditioned units and handed him a list of items on a yellow legal pad. The list showed that ITW/ Hobart had eleven reconditioned Champ 10,000's for sale. He told them he would buy all eleven of the reconditioned Champ 10,000's. The parties agreed orally that Fox would buy them for $1600.00 each. Fox testified he knew he could sell them for $2000.00 each. Fox called his store from Houston and advised his staff he had contracted to buy the reconditioned product referred to as "recons" and told his staff to prepare an advertisement for publication in the trade magazines and newspapers familiar to his farm and ranch customers. ¶5 Upon returning to Oklahoma City, however, Fox received a telephone call from Massie who told him he could not deliver the eleven recons to him because Hobart would not agree to sell them to Fox and Lumber 2. Massie told him the sales manager at Hobart refused to complete the sale because it would "screw up the whole territory" for its existing customers in the area. Fox immediately stopped the ad from running and advised his staff that Lumber 2 would not receive the product. Thereafter, ITW/Hobart sold the recons to Atwood's, a much larger competitor of Lumber 2 which then sold them for $1800.00 each. ¶6 Subsequently, Fox bought new welder/generators at retail price through Ace Hardware, also an ITW customer in the area. He advertised them at $1999.00 each, which was approximately the same price at which he had intended to sell the recons. Fox received telephone calls a few minutes apart from Dennis Gerrits, Regional Manager of Miller Electric at factory headquarters on the commercial side of ITW, and from David Anderson of Hobart Welders, on the retail side of ITW, asking him to consider raising his prices for the new product. They explained that some of their retailers had complained and inquired "why you're selling things so cheaply." Fox refused to raise prices, explaining he was forced to buy new Champ 10,000's because ITW had breached its contract with him and Lumber 2 on the "recons". Eventually, Lumber 2 did raise its prices but lost money because it could not compete with the larger stores. Fox alleged ITW sold new product and recons to Lumber 2's competitors at better prices than it sold to Lumber 2 and did so in retaliation for his refusal to raise prices on the new Champ 10,000's. STATUTORY CONSTRUCTION ¶7 The OCPA does not define the term "consumer." COCA defined "consumer" as "one that consumes; specifically, one that utilizes economic goods," citing Webster's Third New International Dictionary 490 (1986). COCA found Lumber 2 is not a "consumer" under the OCPA because it did not "consume" or utilize the product it purchased under the facts of this case. The court held that although Lumber 2 was a potential customer of ITW, it "sought to obtain a product for resale to the ultimate consumer, the retail customer." ¶8 This case presents issues of statutory construction which are questions of law to be reviewed de novo; in such cases we exercise plenary, independent, and non-deferential authority. Welch v. Crow, ¶9 The title of the OCPA is found at An Act relating to consumer protection; providing for protection to buyers against fraud and certain other practices by sellers . . . .; [emphasis added]. ¶10 As the title provides, the subject of the Act is consumer protection. The Act's protection to buyers arises only when they are also "consumers." ARGUMENTS AND DISCUSSION ¶11 Lumber 2 claims that COCA ignored common sense definitions of "consumer," including "buyer" and "purchaser," which plainly would be applicable to it. As noted in the language used in the title of the OCPA above, ¶12 Lumber 2 also argues that it is the unique language of the OCPA that distinguishes it from the language of other acts showing that Lumber 2 should be included. It refers to the term "consumer transaction." When the Act was enacted in 1972, "consumer transaction" related entirely to "personal, household and family purposes." ¶13 Lumber 2 also contends it is a "person" involved in a "consumer transaction" for the "business oriented purpose" of "stocking its retail store." A. "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, and any other legal entity. ¶14 The current statute, ¶15 COCA correctly considered the plain and ordinary meaning of the term "consumer" which we are required to do with an undefined statutory term. See Naylor v. Petuskey, supra. In considering the "plain and ordinary" meaning of "consume" or "consumer," "Consumer." One who uses economic goods and so diminishes or destroys their utilities; opposed to producer. Black's Law Dictionary, Revised Fourth Edition (1968). consumer. A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes. Black's Law Dictionary, Ninth Edition (2009). consumer - 1. One that consumes. 2. Economics. One who acquires goods or services; a buyer. The American Heritage Dictionary of the English Language, New College Edition (1980). consume - 1. To eat or drink up; ingest. 2. To expend (fuel, for example); use up. 3. To waste; squander. 4. To destroy, to level. 5. To absorb, engross. The American Heritage Dictionary of the English Language, New College Edition (1980). ¶16 Lumber 2 also contends the OCPA does not exempt businesses from recovering under the Act and that COCA improperly created an exception to recovery which does not exist. It contends that COCA violated the rule of statutory construction requiring courts to consider only the statutory language used and not read into it exceptions not made, citing Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, ¶17 ITW argues that the issue is not whether Lumber 2 is a "person" or whether a corporation could sometimes be a "consumer." ITW agrees with COCA that the ordinary and plain meaning of "consumer" is one who consumes. Therefore, it contends Lumber 2, a retailer buying welder/generators for resale to its customers, is a supplier, not a consumer, under the OCPA because it did not "consume" or "use" the product. Thus, it argues Lumber 2 is unable to bring a private action against it under the OCPA. ¶18 In its petition for certiorari, Lumber 2 cited cases from other jurisdictions which held that businesses were "consumers." However, we find the reasoning in those cases, Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756 (TX 1984), (reh. denied) (retailers who purchased goods for resale were "consumers" under the Texas Act); and Dreier Co., Inc. v. Unitronix Corp., 527 A.2d 875, 882, 218 N.J.Super. 260, 273 (N.J. 1986) (a merchant who bought a computer for its business use was a "consumer" under the New Jersey Act) give more support to ITW's arguments and to COCA's holding in this case than to Lumber 2's position. ¶19 COCA relied on Guyana Telephone & Telegraph Co., Ltd. v. Melbourne International Communications, Ltd., 329 F.3d 1241 (11th Cir., 2003), in deciding Lumber 2 is not a consumer for purposes of the OCPA. The Eleventh Circuit court construed the Florida Deceptive and Unfair Trade Practices Act (Florida Act). "Consumer" was defined in the Florida Act which included "corporations." The Act had been amended to include an intent to protect the "consuming public at large and legitimate business enterprises" from unfair practices. The plaintiff argued it was a corporation and that the Act was intended to protect legitimate business enterprises and should protect it, despite the fact it was a supplier. The appellate court noted that the Act at that time still required actions to be brought by "consumers" ¶20 In Oklahoma, as well, "aggrieved consumers" have claims against violators of the OCPA for monetary damages. See ¶21 Our holding does not mean that Lumber 2, as a corporate entity, could never be a consumer under different facts. However, the purchase would have to involve goods which Lumber 2 bought to use in its own business, not to resell to its customers. In describing the importance to Lumber 2's business of obtaining the "recons," J.P. Fox testified: That is - that's what makes this thing a niche item for us, is that it is reconditioned, you know, it has all these features that I've just explained. But what makes it so awesome for me was that it was reconditioned. It gave us something that our competitors didn't have, gave us something to go out there and present to our customers that would have given us a good promotion. ¶22 Lumber 2's intent under the current facts was to buy the new and reconditioned Champ 10,000's to sell to their farm and ranch customers, despite its contention on certiorari that it purchased the product to "stock" or "supply" their retail store. Lumber 2 clearly described its intent not only to stock their stores, but also to resell the product to its customers, the intended "ultimate consumers." Just as we would not imply legislative intent to provide a private right of action for OCPA violations before CONCLUSION ¶23 Lumber 2 was not a consumer for purposes of the OCPA under the factual circumstances of this case. The trial court's judgment entered for Lumber 2 on its breach of contract claim will remain undisturbed. The judgment on the remaining claims is reversed. ¶24 OPINION OF COURT OF CIVIL APPEALS IS VACATED; JUDGMENT OF TRIAL COURT IS AFFIRMED IN PART AND REVERSED IN PART. TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, REIF, GURICH, JJ. - CONCUR COMBS, J. - DISSENTS FOOTNOTES 1 Lumber 2 raised the following issues for our consideration on certiorari: 1. Whether Lumber 2 may recover under the Oklahoma Consumer Protection Act (OCPA) as a "consumer;" 2. Whether ITW unilaterally engaged in conduct which violates the Oklahoma Antitrust Reform Act (OARA); 3. Whether the Court of Civil Appeals (COCA) failed to consider evidence supporting the verdict for Lumber 2 for OARA violations; and 4. Whether "invited error" required COCA to apply the per se Price Fixing Instruction and whether a per se analysis applied to some of Lumber 2's OARA claims. 2 Scott Massie of Don Massie Company, Inc. settled with Lumber 2 before trial and is not involved in this proceeding. The trial court's judgment reflects the settlement of this claim for $15,000.00 and ordered "the remaining Defendants are entitled to a credit for each sum in determining the final Judgment amount against them." 3 See ¶9. 4 In the 1972 Act, "consumer transaction" was defined as "the advertising, offering for sale, sale, or distribution of any services or any property, tangible or intangible, real, personal or mixed, or any other article, commodity, or thing of value wherever situated, to an individual for purposes that are primarily personal, family or household." 15 O.S. Supp. 1972 §752(A). 5 See 15 O.S. Supp. 1980 §752(B): B. "Consumer transaction" means the advertising, offering for sale, sale, or distribution of any services of any property, tangible or intangible, real, personal or mixed, or any other article, commodity, or thing of value wherever situated, for purposes that are personal, household or business oriented. 6 A similar argument was made by the manufacturer of air conditioning air valves in Warren Technology, Inc. v. Hines Interests Limited Partnership, 733 So. 2d 1146 (Fla.App. 3 Dist., 1999). The plaintiff/manufacturer sued a real estate developer for money damages under the Florida Deceptive and Unfair Trade Practices Act, alleging trade disparagement. Although the applicable Florida Act required an action for monetary relief to be brought by a "consumer," the Act did not define the term. However, the court held that the plaintiff would not be helped by the amended version of the Act which defined "consumer" to include "corporation." Instead, the court considered the plaintiff's actions in the transaction and held: [T]his addition, however, simply defines who may be a "consumer;" it does nothing more. [emphasis added.] The 1993 definition of "consumer" does not include the terms "producer" or "manufacturer," both of which may properly be used to classify the plaintiff. Thus, the plaintiff's interpretation of the term is not viable. While we agree that the plaintiff is a corporation and, therefore, could be a consumer under the 1993 version of the Act, the fact that it acted as the producer in the instant transaction precludes recovery. [emphasis added.] 773 So. 2d at 1148. 7 15 O.S. Supp. 2003 §752(13): 13. "Deceptive trade practice" means a misrepresentation, omission or other practice that has deceived or could reasonably be expected to deceive or mislead a person to the detriment of that person. . . . [emphasis added]. 88 15 O.S. Supp. 2003 §754(2): Nothing in this act shall apply to: . . . 2. [a]cts done by retailers or other persons acting in good faith on the basis of information or matter supplied by others and without knowledge of the deceptive character of such information or matter. [emphasis added]. 9 See gen., 15 O.S. Supp. 2003 §753, 15 O.S. 2001 §756.1, and 15 O.S. 2001 §757. 10 15 O.S. Supp. 1972 §752(A). 11 The provisions of the Uniform Commercial Code may be applied by analogy. See Oklahoma Code Comment, 12A O.S. Supp. 2006, §1-102. "Consumer" is defined at 12A O.S. Supp. 2006, §1-201(b)(11), which provides: (11) "Consumer" means an individual who enters into a transaction primarily for personal, family, or household purposes. 12 In Big H Auto, the Texas Supreme Court discussed whether a merchant who purchases autos for resale was a "consumer" under the Texas Deceptive Trade Practices Act, i.e., whether resale of the goods constituted a "use" of the goods under the act. The Court noted the legislative history showed that prior to final passage, the word "final" was stricken from the proposed term "final use" because it was too restrictive and thus contrary to the statutory mandate to construe the act liberally. Also, the act was amended to add "corporations" and "partnerships" to the definition of "consumer," and the "commercial or business use" exemption was deleted. Thus, the Texas Supreme Court held that an auto dealer who purchased a car for resale was a "consumer" under the Texas act. The Texas Act is distinguishable from the OCPA. The Texas legislative history supports a finding the business was a consumer. Oklahoma does not have the benefit of legislative history. In Dreier, a merchant in a sporting goods company purchased a computer system for use in his business for customer billings, inventory control and accounts receivable and accounts payable. The purchaser had no knowledge or expertise in computer systems and relied on the defendants to design a system which would be useful in the business. The merchant brought a claim for treble damages under the New Jersey Consumer Fraud Act (NJCFA). While the initial issue was whether the plaintiff brought its action within the applicable statute of limitations for its various claims, it became necessary to determine whether the plaintiff was a "consumer" for purposes of the NJCFA. Similar to the OCPA, "consumer" is not defined under the New Jersey act. The defendant argued that as a merchant, the plaintiff was not a "consumer" and therefore had no claim under the act. The New Jersey appellate court disagreed, setting out the definition of "person" under the act, noting that it included partnerships, corporations, companies or business entities. However, the court further explained its reasoning: [E]ven the most world-wise business entity can be inexperienced and uninformed in a given consumer transaction. Unlawful practices thus can victimize business entities as well as individual consumers. Indeed, according to plaintiff, it had absolutely no experience in computers and was therefore just as vulnerable to unconscionable business practices as a private consumer would have been in the circumstances. (emphasis added) 527 A.2d 875, 882, 218 N.J.Super. 260, 273. 13 The statute has since been changed which arguably would allow non-consumers to bring an action under the Florida Act. The issue has not been settled by the Florida courts. 14 Trial Transcript, Vol. Two, pages 11-12, January 15, 2008.

0790ccac-2b06-4af1-9562-dd902e3168e7

Bailey v. Independent School Dist. No. I-29

oklahoma

Oklahoma Supreme Court

BAILEY v. INDEPENDENT SCHOOL DIST. NO. I-292011 OK 37Case Number: 109031Decided: 05/03/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. DEBRA A. BAILEY, ELIZABETH L. BALLARD, PATTIPEG S. HARJO, DANIEL T. HARRIS, DEBORAH A. HILL, GARIANN JACOBS, BARBARA SUE MADOLE, TERESA McINTYRE, VICTORIA R.WOOD and PROFESSIONAL EDUCATORS OF NORMAN, Plaintiffs/Appellants,v.INDEPENDENT SCHOOL DIST. NO. I-29 OF CLEVELAND COUNTY, OKLAHOMA, a/k/a NORMAN PUBLIC SCHOOLS, Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY Honorable Tom Lucas, Trial Judge ¶0 If funds are available, the Education Leadership Oklahoma Act provides that a bonus be awarded to eligible teachers who attain national certification. Although in the past, the State Board of Education provided the full amount of the bonuses, as well as providing the additional amounts necessary for the payment of the employer withholding taxes, it did not do so in 2010. As a result, the employer withholding tax was deducted by local school districts from the amount which was sent. The teachers filed suit seeking declaratory relief because employer taxes were withheld from their bonus payments. The district court dismissed the action for failure to state a claim upon which relief can be granted. We hold that because the State was responsible for paying employer withholding taxes for the bonuses, the School District had to pay the employer's tax from the bonus allocations. AFFIRMED. Richard B. Wilkinson, Oklahoma City, Oklahoma, for Plaintiffs/Appellants.Robert L. Pendarvis, Mary Robertson, Oklahoma City, Oklahoma, for Defendant/Appellee. KAUGER, J.: ¶1 We must decide whether a school district may deduct employer withholding taxes from teacher bonuses paid pursuant to the Education Leadership Oklahoma Act FACTS ¶3 Subject to the availability of funds, the State Department of Education (SDE) is authorized to provide an annual $5,000 bonus to teachers who attain National Board certification pursuant to the Education Leadership Oklahoma Act (Act). Prior to the 2007 - 2008 school year, the SDE provided the annual bonus directly to teachers who were eligible under the Act, and the payments were processed as 1099-MISC income for federal tax purposes. The SDE classified the teachers as independent contractors, apparently to avoid paying employer related withholding taxes. In 2007, the Internal Revenue Service (IRS) disputed the characterization of the teachers as independent contractors and determined that the annual bonus payments to teachers were wages and that for purposes of the bonus payments, the teachers were employees of the State. ¶4 The IRS and the State of Oklahoma, on behalf of the SDE, eventually settled the matter. ¶5 Unlike the 2008 and 2009 letters, the SDE did not specify separate allocations for the bonus in 2010. ¶6 On September 1, 2010, nine teachers, Debra A. Bailey, Elizabeth, L. Ballard, Pattipeg S. Harjo, Daniel T. Harris, Deborah A. Hill, Gariann Jacobs, Barbara Sue Madole, Teresa McIntyre, Victoria R. Wood, and PEN (teachers) filed a petition for declaratory relief in the District Court of Cleveland County asserting that the employer contributions had been wrongfully deducted from the teachers' bonuses. They asked the court to enter a declaratory judgment declaring that the manner in which the School District paid the bonuses was contrary to the Oklahoma statutes and SDE directives. The School District filed a Motion to Dismiss on September 27, 2010, arguing that the School District could not be liable for the payment of bonuses pursuant to ELOA and that because the School District was required to discharge the SDE's tax obligations, declaratory judgment could not be rendered. On December 2, 2010, the trial court issued an order granting the School District's motion to dismiss for failure to state a claim upon which relief could be granted. ¶7 The trial court found that because the School District could not be liable for bonus payments pursuant to statute, payment of the $5,000 bonuses was conditioned on the availability of funds. The court determined that the School District was required to use some of the allocated bonus money to fund the SDE's tax obligations. It also found that the School District was not a proper party and that there was no justiciable controversy. The teachers filed an appeal on December 21, 2010, and we retained the cause on January 24, 2011. PURSUANT TO ¶8 Federal law imposes an excise tax on every qualifying employer who has an employee. This excise tax is imposed on employers for the privilege of establishing and maintaining the relationship of employer and employee.7 The taxes are the sum of two rates - the old-age, survivors, and disability insurance tax at 26 U.S.C. §3111(a) and the hospital insurance tax in section (b).8 This statute is referred to as the Federal Insurance Contributions Act (FICA). These tax rates are the same as the employee's tax rate and employers and employees are responsible for their respective portions.9 ¶9 Prior to 2007, the SDE classified teachers as independent contractors for the purpose of awarding the bonuses. In 2007, the IRS disputed the classification and eventually determined that: 1) the bonuses were wages; 2) the teachers were employees of the SDE for bonus purposes, not independent contractors;10 and 3) the SDE and the teachers would have to pay employee and employer withholding taxes. The IRS also determined that the teachers were employees of the State for purposes of the bonuses.11 In order to avoid placing every teacher into the State's payroll system, in 2008 and 2009, the SDE sent the bonus payments, as well as the necessary employer withholding taxes, to the school districts. Since the IRS determination, the school districts have acted as intermediaries to send the funds to eligible teachers. ¶10 Intermediaries or third parties can be held responsible for an employer's failure to pay employer withholding taxes. This liability arises from 26 U.S.C. §6672(a)12 which provides that persons other than the employer can be liable for an employer's tax contribution if they are responsible for collecting and accounting for the tax and wilfully fail to discharge that duty. This statute was enacted to provide the federal government with a method to collect unpaid taxes.13 Once an employee has had taxes withheld from their wages, the United States has no recourse to recoup money from the employee which was not remitted by the employer.14 This statute has been construed liberally by courts to impose liability on any "responsible person" who wilfully fails to remit employer withholding taxes.15 ¶11 In Commonwealth National Bank of Dallas v. United States, 665 F.2d 743 (5th Cir. 1982) the CEO of a company, the lending bank to that company, and the CEO of the bank were sued by the United States as "responsible persons" under 26 U.S.C. §6672(a)16 for failing to pay taxes withheld from employee wages. In that case, the officers of the lending company were executing payroll checks as well as checks for the employer withholding taxes, but they only honored the payroll checks even though the company's account was afforded a large overdraft varying between $98,500 and $237,000. The cause went to trial and the jury found both officers liable for the failure to pay the employer withholding tax contributions. Apparently, the lending bank's officers were found to be liable because they were primarily responsible for determining which of the company's creditors were paid. The jury determined that they each had a duty and responsibility to ensure the payment of the company's taxes. On appeal, the Circuit Court affirmed the decision of the trial court.17 ¶12 Many cases acknowledge that a "responsible person" need not be vested with routine duties of collection and payment; it is sufficient that they have the authority to avoid the default that gave rise to the violation.18 Here, the School District had the power to see that the taxes were paid and had significant, if not exclusive, control over the disbursement of the bonuses. The SDE had the responsibility to pay employer withholding tax contributions, and the School District, acting as a conduit, had a duty to remit the money to the IRS. ¶13 The Act provides that bonuses are "subject to the availability of funds."19 In the past, the SDE sent enough money for the payment of the employer withholding tax contribution and the full amounts of the bonus. However, in 2010, the SDE did not send enough money to fully fund the bonuses and to pay the employer withholding tax contribution. This suggests that there were not sufficient funds available to do so. We recognize that the diminishment of the bonus is disappointing to the qualifying teachers, but it appears in this period of state budgetary shortfalls that the SDE determined that partial bonus was better than no bonus at all. The lack of availability of funds is illustrated by the recent amendments to the Act. Title 70 O.S. Supp. 2010 §6-204.2, was amended during the 2010 legislative session to suspend the payment of bonuses beginning June 30, 2010, through June 30, 2012, for teachers who attain national board certification during that period.20 CONCLUSION ¶14 Pursuant to an IRS determination, insofar as the bonuses are concerned, the teachers are employees of the SDE, and the State is responsible for the payment of employer withholding tax contributions for the payment of these bonuses. Because the SDE was responsible for paying the employer withholding tax contributions, and the School District acted as a conduit for the SDE, the School District had a duty to pay the employer withholding tax contributions from the monies sent by the State for the payment of the bonuses to the teachers. It was not required to pay the full amount of the bonus if the funds were unavailable. AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 Title 70 O.S. Supp. 2007 §6-204.2 provides in pertinent part: A. Subject to the availability of funds, the Oklahoma Commission for Teacher Preparation and the State Board of Education are authorized to establish the Education Leadership Oklahoma program. B. The purposes of the Education Leadership Oklahoma program are: 1. Provide teachers throughout the state information about National Board certification and the Education Leadership Oklahoma program scholarships and services; 2. Provide technical assistance and National Board certified mentors to all teachers seeking National Board certification upon request; 3. Provide scholarships, pursuant to the Education Leadership Oklahoma Act and Oklahoma Commission for Teacher Preparation rules, for teachers seeking National Board certification; 4. Provide a bonus to teachers who achieve National Board certification pursuant to the Education Leadership Oklahoma Act and State Board of Education rules; 5. Reward teachers who achieve National Board certification without the financial support of the Education Leadership Oklahoma program by awarding them the application fee and the amount of the scholarship given to Education Leadership Oklahoma participants pursuant to this section and commission rules; and 6. Provide recognition to National Board certified teachers. . . E. Subject to the availability of funds appropriated by the Legislature for the purposes of this subsection, the application fee for National Board certification shall be paid for scholarship recipients by the Commission, and scholarship recipients shall be provided a scholarship in the amount of Five Hundred Dollars ($500.00) to cover other expenses associated with obtaining National Board certification. F. It is the intent of the Legislature that the Oklahoma Commission for Teacher Preparation contract with Southeastern Oklahoma State University to establish Education Leadership Oklahoma program training in higher education teacher preparation programs in the state to assist teachers in meeting the requirements to obtain National Board certification. G. All teachers seeking National Board certification shall be eligible to participate in Education Leadership Oklahoma program training to assist them in meeting the requirements of the National Board certification process, free of charge. H. The Oklahoma Commission for Teacher Preparation shall promulgate rules for the selection of scholarship recipients, the selection and utilization of alternates, the payment and reimbursement of application fees, and the issuance of scholarships. I. Subject to district board of education policy or collective bargaining agreement, additional professional leave days may be granted to teachers seeking National Board certification for National Board certification portfolio development. During the two (2) days of the additional professional days granted to teachers for National Board certification portfolio development, a substitute teacher shall be provided by the school district at no cost to the teacher. J. The State Board of Education shall provide all teachers who attain National Board certification a bonus in the amount of Five Thousand Dollars ($5,000.00) annually no later than January 31 for as long as they maintain their National Board certification and are teaching in the classroom full-time in an Oklahoma public school. No school or school district shall be liable for payment of bonuses pursuant to this section. K. The bonus shall not be included in the calculation of the teacher's salary for purposes of meeting the district or statutory minimum salary schedule or for purposes of compensating Oklahoma Teachers' Retirement System contributions or benefits. L. The State Board of Education shall promulgate rules for the provision of the bonus pursuant to this section to include, but not be limited to, a process by which a National Board certified teacher will verify that: 1. The National Board certification has not lapsed; and 2. The teacher is still a full-time teacher. M. It is the intent of the Legislature that the Oklahoma State Regents for Higher Education incorporate the National Board certification portfolio development into all programs in education leading to a master's level degree. N. Upon implementation of this subsection as provided for in subsection O of this section, the State Board of Education shall provide all teachers who attain National Board certification a bonus in the amount of Seven Thousand Dollars ($7,000.00) annually no later than January 31 for as long as they maintain their National Board certification and are full-time teachers in an Oklahoma public school. No school or school district shall be liable for payment of bonuses pursuant to this section. Upon implementation, the bonus provided for in this subsection shall replace the bonus provided for in subsection J of this section. O. Implementation of subsection N of this section shall be contingent upon the appropriation by the Legislature of state funds for the specific purpose of implementing subsection N of this section. Nothing in this section shall prevent the State Board of Education or a school district board of education from utilizing private, local, or federal funds to implement subsection N of this section. The current version of the statute is not referenced because it was not in effect at the time the bonuses were distributed. 2 Although the IRS rulings are not a part of the record, the following information regarding the IRS determination is helpful. It was sent in a December 6, 2007, letter to Sandy Garrett, State Superintendent of Public Instruction of the Oklahoma State Department of Education from Brenda Bolander, State Comptroller of the Oklahoma Office of State Finance: Dear Superintendent Garrett; We have recently settled an appeal with the Internal Revenue Service (IRS) for the limited scope examination of the State of Oklahoma Employment Tax Returns (Forms 941) for calendar years 2001, 2002, and 2003. At issue was whether the annual bonus paid to teachers for National Certification by the Oklahoma State Department of Education is wages for purposes of Internal Revenue Code (IRC) 3121(b)(7)(E) and/or IRC 3121(b)(7)(F). The IRS has found for the purposes of the bonus payment that the teachers are subject to the will and control of the School District, State, and Statutes in performing their duties as public school teachers. The source of compensation for these services is irrelevant in determining worker classification. The fact that the bonus was paid by the State, rather than the school district, does not change the teachers' classification from employee to independent contractor. The amounts were paid in connection with the employee's services as a public school teacher. IRC 3401(d) provides that an employer (for purposes of withholding) can be someone other than the common law employer, if that person has control of the payment of wages. Based on the IRS worker classification determination, the bonus is wages and the teachers would be considered employees of the State, per IRC 3121(a) and 3121(b). These wages are subject to Social Security, Medicare, and income tax withholding per IRC 3402(d). Effective immediately, as part of the settlement agreement, the State has agreed to no longer process these payments as 1099-MISC reportable and the State is not required to issue corrected 1099-MISC or W-2 forms to the teachers. Accordingly, OSF will reject any miscellaneous claims from this point forward which include these bonus payments. At this point, the State Department of Education will need to determine which method of payment it chooses to use, either add the teachers to the state PeopleSoft payroll system and pay them directly as state employees, or forward the funds to the school districts for payment to the teachers through the districts' payroll systems. There are issues to consider in making that decision and our staff is available to provide additional information as needed. Please let me know if you require any assistance during this transition. Sincerely,Brenda BolanderState Comptroller 3 Letter from Garrett, State Superintendent, Defendant's Motion to Dismiss, Exhibit "C." 4 There was no "Revised Allocation Notice" attached to the January 25, 2010 letter in the record provided. 5 January 26, 2010 e-mail from Sandy Garrett, Plaintiffs' Response and Brief in Opposition to Defendant's Motion to Dismiss, Exhibit "B," page 1 of 2. 6 January 26, 2010 letter from Brenda Burkett, CFO of Norman Public Schools, Plaintiffs' Response and Brief in Opposition to Defendant's Motion to Dismiss, Exhibit "C." 7 Jones v. Goodson, 121 F.2d 176, 179 (10th Cir. 1941). 8Title 26 U.S.C. § 3111(a) and (b) provide: (a) Old-age, survivors, and disability insurance.--In addition to other taxes, there is hereby imposed on every employer an excise tax, with respect to having individuals in his employ, equal to the following percentages of the wages (as defined in section 3121(a)) paid by him with respect to employment (as defined in section 3121(b))-- In cases of wages paid during 1984, 1985, 1986, or 1987, the rate shall be 5.7 percent.In cases of wages paid during 1988 or 1989, the rate shall be 6.06 percent. In cases of wages paid during 1990 or thereafter, the rate shall be 6.2 percent. (b) Hospital insurance --In addition to the tax imposed by the preceding subsection, there is hereby imposed on every employer an excise tax, with respect to having individuals in his employ, equal to the following percentages of the wages (as defined in section 3121(a)) paid by him with respect to employment (as defined in section 3121(b))-- (1) with respect to wages paid during the calendar years 1974 through 1977, the rate shall be 0.90 percent; (2) with respect to wages paid during the calendar year 1978, the rate shall be 1.00 percent; (3) with respect to wages paid during the calendar years 1979 and 1980, the rate shall be 1.05 percent; (4) with respect to wages paid during the calendar years 1981 through 1984, the rate shall be 1.30 percent; (5) with respect to wages paid during the calendar year 1985, the rate shall be 1.35 percent; and (6) with respect to wages paid after December 31, 1985, the rate shall be 1.45 percent. 9 Title 26 U.S.C. §3111(a) and (b), see note 8, supra. 10 Letter to Garrett, see note 2, supra. 11 Letter to Garrett, see note 2, supra. 12 Title 26 U.S.C. §6672(a) provides: General rule.-- Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 or part II of subchapter A of chapter 68 for any offense to which this section is applicable. 13 Kadah v. United States, 600 F. Supp. 1302, 1308 (N.D.N.Y. 1985). 14 Kadah v. United States, 600 F.Supp 1308, see note 13, supra. 15 Slodov v. United States, 436 U.S. 238, 259, 98 S. Ct. 1778, 56 L. Ed. 2d 251 (1978). 16Title 26 U.S.C. §6672(a), see note 12, supra. 17 In Commonwealth National Bank of Dallas v. U.S., 665 F.2d 743 (5th Cir. 1982) the court noted one of the jury instructions provided at trial which stated, in pertinent part: The term "responsible person" includes any person or entity who is connected or associated with the corporation-employer in such a manner that such person or entity has the power to see that the taxes are paid, has the power to make final decisions concerning disbursement of funds of the corporation, or has the power to determine which creditors are to be paid and when they are to be paid. "Final" means significant rather than exclusive control over the disbursal of corporate funds. The meaning of the term "responsible" is very broad and is not limited to the person who actually prepares the payroll checks or the tax returns, although it may include such person. A "responsible person," within the meaning of the law, is not limited to a person in the sense of a human being as we customarily understand the word, but may include an individual, a bank, a creditor, or a corporation. A responsible person need not even be authorized to draw checks for the corporation so long as he has the power to decide who will get such checks. In other words, the "responsible person" is any person or other entity who can effectively determine how corporate funds are to be spent and which bills should or should not be paid or when they should be paid. A person who is not an official of the employer, or a corporation unrelated to the employer, may also be a "responsible person" if, because of a peculiar relationship with the employer, such person or corporation controls the finances of the employer. The Commonwealth Court also noted that: In approaching the issue of personal responsibility for non-payment of withheld taxes, the courts have tended to disregard the mechanical functions of the various corporate officers, and, instead, have searched for the person or persons who could have seen to it that the taxes were paid, a person with ultimate authority over expenditures of corporate funds who can fairly be said to be responsible for the corporation's failure to pay over its taxes. 18 Harrington v. United States, 504 F.2d 1306, 1312 (1st Cir. 1974); Adams v. United States, 504 F.2d 73, 75 (7th Cir. 1974), cert. den. 421 U.S. 991, 95 S. Ct. 1998, 44 L. Ed. 2d 482; Pacific National Insurance Co. v. United States, 422 F.2d 26, 30 (9th Cir. 1970), cert. den. 398 U.S. 937, 90 S. Ct. 1838, 26 L. Ed. 2d 269; Werner v. United States, 374 F.Supp 558, 562 (1974), aff'd without discussion 512 F.2d 1381 (2nd Cir. 1975); United States v. North Side Deposit Bank, 569 F. Supp. 948, 960 (W.D. Pa. 1983); United States v. Hill, 368 F.2d 617, 621 (5th Cir. 1966); Mueller v. Nixon, 470 F.2d 1348, 1360 (6th Cir. 1972), cert. den. 412 U.S. 949, 93 S. Ct. 3011, 37 L. Ed. 2d. 1001. 19 Title 70 O.S. Supp. 2007 §6-204.2, supra, note 1. 20 Amended by Laws 2010, House Bill 3029, c. 457, §4.

a9f61be5-81fa-4b3d-a253-e6925d6736f8

England v. Walters

oklahoma

Oklahoma Supreme Court

ENGLAND v. WALTERS2011 OK 36Case Number: 106644Decided: 05/03/2011THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. RAYMOND ENGLAND and EVA ENGLAND, Plaintiffs/Appellees,v.DOUGLAS D. WALTERS and CINDY M. WALTERS, Defendants/Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 The trial judge's term expired on Sunday, January 7, 2007, and the next day, before his successor was sworn in, the judge signed a journal entry. The appellants filed a motion to vacate and set aside the judgment asserting that the journal entry was irregular and/or void because the judge lacked legal authority after the expiration of his term of office. The successor judge denied the motion and ordered that the journal entry should stand without modification of the language contained in it. The Court of Civil Appeals reversed and remanded after determining the judgment was void. CERTIORARI GRANTED;OPINION OF THE COURT OF CIVIL APPEALS VACATED;JUDGMENT OF THE DISTRICT COURT AFFIRMED. Clark S. Wood, Sallisaw, Oklahoma, for plaintiffs/appellees.William Orendorff and Matthew Orendorff, Sallisaw, Oklahoma, for defendants/appellants. WINCHESTER, J. ¶1 The plaintiffs/appellees, Raymond England and Eva England, seek certiorari to review an opinion of the Court of Civil Appeals. That court reversed the trial court's refusal to vacate a judgment signed by a trial judge one day after his term had expired. The primary question before this Court is whether a judgment is valid if signed by the trial judge after his term expired but before his successor takes his oath of office. We hold that the judgment is valid. ¶2 In December of 2006 Judge Garrett conducted a bench trial regarding a land dispute, and took the matter under advisement so he could view the land. After he viewed the land, he told the appellees' counsel that he was ruling in their favor, and asked counsel to prepare a journal entry for his signature. He reviewed the proposed journal entry and signed it the day after his term was set to expire, but before his successor, Judge Payton, took his oath of office. ¶3 The defendants/appellants, Douglas D. Walters and Cindy M. Walters, filed a motion to vacate the judgment, alleging it was void, which motion Judge Payton denied. The appellants filed a petition in error, the Court of Civil Appeals determined the judgment was void, and reversed and remanded the case. The appellees filed a petition for certiorari, which this Court granted. ¶4 Title ¶5 In Coyle v. Smith, ¶6 The Coyle Court cited Article 23, § 10 of the Constitution, which provides: "all officers within this state shall continue to perform the duties of their office until their successors shall be duly qualified", and § 41 of the Schedule of the Constitution, which provides: "All persons elected at the time of the adoption of this Constitution to any of the offices provided under the Constitution shall be deemed to have duly qualified upon their taking the oath of office before any officer authorized by law to administer oaths, and executing such bond as may be required by law". The Court concluded that the framers of the Constitution intended for the terms of the members of the Lower House and the short-term Senators of the First Legislature would be less than two years. The terms were to expire on the fifteenth day succeeding the day of the regular state election in 1908 and the terms of their successors should begin that day. Coyle, ¶7 The application of these provisions of our Constitution as applied to the unique facts found in Coyle reveals why that Court held as it did on this issue. In Robertson v. Brewer, ¶8 Regarding allegations of irregularities in communication between the attorney for the appellees and Judge Garrett, the appellants cite no record revealing irregularities took place. Their allegations seem to remain in the realm of speculation of what may have happened. The trial attorney did not represent the appellants during the appeal, and we have no record of testimony to support these speculations of what communications occurred with the attorneys for the parties during the time Judge Garrett made his decision and signed the journal entry. We will presume the decision of the judge was correctly reached. Reeves v. Agee, CERTIORARI GRANTED;OPINION OF THE COURT OF CIVIL APPEALS VACATED;JUDGMENT OF THE DISTRICT COURT AFFIRMED. ALL JUSTICES CONCUR

b4b2a7b9-d8de-450b-9704-e01328076452

Tulsa Ambulatory Procedure Center v. Olmstead

oklahoma

Oklahoma Supreme Court

TULSA AMBULATORY PROCEDURE CENTER v. OLMSTEAD2024 OK 57Case Number: 119791Decided: 06/25/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. TULSA AMBULATORY PROCEDURE CENTER, LLC, OKLAHOMA PAIN & WELLNESS CENTER, PLC AND PRECISION ANALYSIS LABORATORY, LLC, Plaintiffs/Appellant, v. TODD OLMSTEAD, Defendant/Appellee, v. DR. JAYEN PATEL, Third-Party Defendant. CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I, ON APPEAL OUT OF THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA, HONORABLE REBECCA NIGHTINGALE ¶0 Medical providers sued a former employee for breach of an employment agreement. Employee filed counterclaims alleging he was owed unpaid wages and bonuses. Providers filed an answer to the counterclaims, raising "failure to state a claim" as the sole affirmative defense. After nearly four-years of litigation, providers attempted to raise, for the first time, that the contract was illegal and therefore void as a matter of law. The lower court issued an order finding providers had waived the affirmative defense, thus precluding its use as shield from liability. Following a trial on the merits, the trial judge determined providers had breached the employment agreement and issued a money judgment of $387,618.36 in favor of employee. Providers appealed and the Court of Civil Appeals reversed, concluding that refusal to consider providers' claim of illegality was an abuse of discretion. We granted certiorari and now hold the trial judge did not abuse her discretion in striking the Plaintiffs/Appellants' last-minute effort to raise a new affirmative defense. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ORDER STRIKING THE ILLEGALITY AFFIRMATIVE DEFENSE WAS NOT AN ABUSE OF DISCRETION AND IS AFFIRMED; MATTER IS REMANDED TO THE COURT OF CIVIL APPEALS TO RESOLVE ANY REMAINING UNDECIDED ISSUES RAISED IN THE APPEAL. SCOTT V. MORGAN, MOYERS, MARTIN, L.L.P., Tulsa, Oklahoma, Attorney for Plaintiffs/Appellants DAVID R. ROSS, NORMAN, WOHLGEMUTH, L.L.P., Tulsa, Oklahoma, Attorney for Defendant/Appellee GURICH, J. Factual & Procedural History ¶1 Dr. Jayen Patel (Dr. Patel) is one of the principal owners of Tulsa Ambulatory Procedure Center, LLC (TAP), Oklahoma Pain & Wellness (OPW), and Precision Analysis Laboratory (PAL).1 These entities were all housed in the same location and were interchangeably referred to by Dr. Patel and Olmstead as TAP, "the company," or "the center."2 On January 28, 2015, Dr. Patel sent a letter to his brother-in-law, Todd Olmstead (Olmstead), extending an employment offer with his medical groups in Tulsa.3 The job proposal guaranteed Olmstead a base salary of $85,000 along with a performance bonus paid per month "base [sic] on new referrals to the center as well as urine analysis to the partner lab."4 Dr. Patel's proposal did not specify the amount of any bonus, only that it would be a "performance bonus paid per month."5 Olmstead accepted the offer to serve as the Director of Business Development by signing the contract form provided by Dr. Patel. ¶2 Olmstead began his employment on behalf of all three providers on February 23, 2015. During the period between August 23, 2015, and June 14, 2016, Olmstead successfully generated new business for the various medical entities. Generally speaking, the new client referrals were to OPW and PAL, although Olmstead also marketed TAP in an effort to secure additional providers for the surgical center.6 ¶3 Throughout Olmstead's employment, he inquired about receiving his referral bonus, yet was never paid one. At some point, Dr. Patel increased Olmstead's salary to $100,000 annually; however, the record does not indicate precisely when this occurred. Dr. Patel testified the raise was to account for the parties' inability to come up with a suitable bonus formula. Despite a good performance record, Dr. Patel terminated Olmstead's employment with TAP on June 14, 2016.7 ¶4 On November 23, 2016, TAP, OPW, and PAL initiated a lawsuit against Olmstead, alleging inter alia a breach of company confidentiality and non-solicitation requirements associated with working for the medical group.8 Olmstead filed an answer together with several counterclaims against the Plaintiffs, including demands to recover unpaid wages and performance bonuses.9 Plaintiffs filed a joint answer to Olmstead's counterclaims on January 10, 2017. Under a heading entitled "Affirmative Defenses," Plaintiffs' sole assertion was that "Defendant/Third Party Plaintiff has failed to state a claim upon which relief may be granted."10 ¶5 Not only did the Plaintiffs initiate the underlying suit, they also actively participated in the litigation. Throughout the entirety of the case, Plaintiffs filed motions, conducted discovery, sought entry of scheduling orders, and attended hearings. A scheduling order was first entered on March 27, 2018, and was filed on April 20, 2018. Therein, the court set a deadline of April 27, 2018, for amendments to the pleadings. The Plaintiffs did not seek leave to amend their joint answer by the April 27th deadline. Later, the parties filed a joint motion requesting entry of a new scheduling order. On August 1, 2019, one was approved by the trial court and filed of record. In the section of the scheduling order designated for amendments or adding parties, the document reflected that no changes to the pleadings or litigants were necessary. ¶6 Approximately three weeks before the pretrial conference, Olmstead filed a motion for sanctions. Therein, Olmstead alleged that the Plaintiffs had failed to comply with a prior order compelling the companies to provide supplemental information responsive to written discovery requests.11 The trial judge sustained the motion, finding the Plaintiffs failed to comply with prior orders directing Plaintiffs to clarify/augment their discovery responses. The sanction order established the following designated facts for purposes of Olmstead's counterclaims: "50% of the gross income of the gross services income of Tulsa Ambulatory Procedure Center, Oklahoma Pain & Wellness Center, and Precision Analysis Laboratory during the period of Olmstead's employment were generated by Olmstead's referrals."12 ¶7 On or about September 21, 2020, the parties' exchanged a draft pretrial conference order. Plaintiffs' new attorney submitted proposed additions to the draft order, arguing for the first time that the subject employment contract was illegal and unenforceable.13 Specifically, Plaintiffs suggested that the bonus structure violated federal anti-kickback laws codified in 42 U.S.C.§1320a-7b.14 ¶8 In response to this last-minute effort to raise a new defense, Olmstead filed a motion to strike, seeking to prevent Plaintiffs from utilizing illegality as a mechanism to vitiate the contract. Olmstead argued that the Plaintiffs had waived any defense predicated on illegality because: (1) the affirmative defense had not been included in their answer to Olmstead's counterclaims; and (2) Plaintiffs did not seek amendment in a timely manner. He also claimed Plaintiffs failure to comply with discovery relating to referrals based on Medicare or Medicaid exacerbated the prejudicial effect of the late attempt to raise the defense. In a footnote, Olmstead additionally suggested that, on its merits, the claim of illegality was untenable because the anti-kickback laws exempted amounts paid by an employer to a bona fide employee. Plaintiffs filed a response and objection to the motion, and maintained that an illegal contract may never be enforced. In the alternative, the Plaintiffs argued that by raising "failure to state a claim" in their original answer, they had presented an affirmative defense broad enough to encompass illegality. ¶9 The pretrial conference was rescheduled at least twice but was last docketed for September 23, 2020. During this conference, the trial judge reserved a trial date and directed the parties to submit filings relating to unresolved motions concerning sanctions and the illegality defense. At a hearing on November 12, 2020, the trial judge sustained Olmstead's motion and issued a ruling barring Plaintiffs' use of the illegality defense during the upcoming trial. Despite this decision, Plaintiffs filed a motion for summary judgment on December 11, 2020, again challenging Olmstead's counterclaim for unpaid wages and bonuses based on federal anti-kickback laws. Plaintiffs never filed a formal motion seeking leave to amend; nevertheless, they did ask the trial judge to "constructively amend" their answer via the motion for summary adjudication. Olmstead once more asked the trial court to prohibit use of illegality as an affirmative defense, maintaining: (1) the trial court had already issued a decision finding the defense had been waived; (2) because the trial court had already stricken prohibited Plaintiffs' reliance on illegality, constructive amendment would be improper; and (3) the motion was submitted outside of the deadline for filing dispositive motions under the court's most recent scheduling order.15 On February 9, 2021, the trial court entered an order striking Plaintiffs' motion for summary judgment. ¶10 The lower court conducted a non-jury trial on March 2, 2021. Prior to taking testimony, Plaintiffs' counsel offered to stipulate that the bonus amount in the employment agreement was equal to "ten percent [10%] of the revenue generated by [Olmstead's] referrals."16 Olmstead agreed, and the stipulation was made a part of the record. Olmstead testified that new clients were cataloged with a spreadsheet which identified each patient and the provider who referred the individual. Records to support the number of referrals directly attributable to Olmstead were not submitted during trial proceedings; however, detailed documentation was unnecessary based on the trial court's sanction order. Instead, Olmstead produced profit and loss statements for TAP, OPW and PAL. After hearing all the evidence, the trial court entered judgment in favor of Olmstead, finding Plaintiffs breached the employment agreement. The lower court awarded monetary damages of $387,618.36. ¶11 Plaintiffs filed a motion for new trial on May 26, 2021, which alleged: (1) that the trial court misinterpreted the parties' stipulation and that the proper calculation of damages should have been 10% of Plaintiffs' net revenue (not gross), or $57,267.12; and (2) that the trial court should have invalidated the agreement based on their claim that the contract violated state and federal law, and was therefore illegal. The judge denied the motion for new trial and Plaintiffs timely appealed from both the underlying judgment and the order declining to grant a new trial. ¶12 The Court of Civil Appeals (COCA) reversed the order denying the motion for new trial, concluding the trial court should have considered the merits of Plaintiffs' illegality argument. COCA did not address the other issues raised by Plaintiffs on appeal. Defendant sought review in this Court, and we granted a writ of certiorari to consider whether the trial court's decision, precluding Plaintiffs' use of illegality as an affirmative defense, was supported by the record.17 Standard of Review ¶13 We examine an order denying a motion requesting a new trial under an abuse of discretion standard of review. Smith v. City of Stillwater, 2014 OK 42, ¶ 11, 328 P.3d 1192, 1197. Our prior decisions also provide that a trial judge abuses their discretion only when a decision is based on an erroneous conclusion of law or if there is no rational basis in fact for the ruling. Fox v. Mize, 2018 OK 75, ¶ 6, 428 P.3d 314, 319. Similarly, a lower court ruling which precludes a party from amending their pleadings or which prevents a party from raising an affirmative defense after filing an answer is reviewed under an abuse of discretion standard. Prough v. Edinger, Inc., 1993 OK 130, ¶ 6, 862 P.2d 71, 74. Analysis ¶14 We are asked to decide whether the trial court erred by issuing an order striking the Plaintiffs' last minute attempt to raise illegality as an affirmative defense to Olmstead's counterclaims. Here, the Plaintiffs neither raised illegality in their answer to Olmstead's counterclaims, nor sought to amend their answer to include the defense as permitted by the trial court's scheduling order. Plaintiffs first attempted to raise their illegality argument by including the defense in a draft pretrial conference order circulated on or about September 21, 2020.18 Additionally, the Plaintiffs' motion for summary judgment, which attempted to raise illegality for a second time, was not filed until December 11, 2020, almost one-year after the deadline for filing dispositive motions. Thus, the Plaintiffs did not raise the illegality claim until: (a) after the trial court had already awarded summary judgment to Olmstead on the issue of breach of contract; (b) more than ten (10) months after the close of discovery; (c) more than nine (9) months after the lower court's deadline for filing dispositive motions; and (d) almost four (4) years of litigating a case originally filed by the Plaintiffs. Affirmative defenses must generally be raised in a responsive pleading, motion, or by subsequent amendment. ¶15 Initially, we must begin with the statutory text in 12 O.S.Supp.2013, § 2008, which provides in relevant part: * * * * B. DEFENSES; FORM OF DENIALS. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state, and this statement has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Section 2011 of this title. C. AFFIRMATIVE DEFENSES. In pleading to a preceding pleading, a party shall set forth affirmatively: 1. Accord and satisfaction; 2. Arbitration and award; 3. Assumption of risk; 4. Contributory negligence; 5. Discharge in bankruptcy; 6. Duress; 7. Estoppel; 8. Failure of consideration; 9. Fraud; 10. Illegality; 11. Injury by fellow servant; 12. Laches; 13. License; 14. Payment; 15. Release; 16. Res judicata; 17. Statute of frauds; 18. Statute of limitations; 19. Waiver; and 20. Any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. D. EFFECT OF FAILURE TO DENY. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. E. PLEADING TO BE CONCISE AND DIRECT; CONSISTENCY. 1. Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required. 2. A party may set forth, and at trial rely on, two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in Section 2011 of this title. F. CONSTRUCTION OF PLEADINGS. All pleadings shall be so construed as to do substantial justice. Under subsection C, a party responding to a pleading set forth in subsection A, shall raise any affirmative defenses in an original responsive pleading. 12 O.S.Supp.2013, § 2008(C); see also FED. R. CIV. P. 8(c). Failure to raise an affirmative defense in an answer may operate as a waiver of that defense. See Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268, 1272 (holding a party waived statute of limitations defense by not raising it in their responsive pleading). However, neglecting to raise an affirmative defense in an original responsive pleading does not mean a party is forever barred from subsequently presenting the defense via amendment. See e.g., Liberty Bank and Trust Co. of Oklahoma City, N.A. v. Bachrach, 1996 OK 143, ¶ 11, 916 P.2d 1377, 1380 (finding answer should have been deemed amended to include affirmative defense when motion for summary judgment and response sufficiently raised the defense). We must bear in mind that under the Oklahoma Pleading Code (12 O.S. § 2001, et seq.), rules concerning amendments are to be applied in a liberal manner to further substantial justice. Wilson v. Webb, 2009 OK 56, ¶ 9, 221 P.3d 730, 734. Although our decisions mandate liberal application of statutes relating to the amendment of pleadings, this tenet must be balanced against notions of fundamental fairness associated with timely notice of claims/defenses and the well-ordered resolution of litigation. ¶16 A waiver generally occurs when a party fails to raise an affirmative defense in a timely manner through an original responsive pleading, amendment of an answer, filing a motion (such as a motion for summary judgment or a motion to dismiss), or by consent of the opposing party. Radio Corp. of Am. v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir. 1970). The purpose behind § 2008(C) and its federal counterpart is "to provide [parties] with adequate notice of a defendant's intention to litigate an affirmative defense, thereby affording an opportunity to develop any evidence and offer responsive arguments relating to the defense." Davignon v. Clemmey, 322 F.3d 1, 15 (1st Cir. 2003). ¶17 We have previously examined a trial court order prohibiting an amendment to assert an affirmative defense after a party failed to raise the same in a responsive pleading. In Prough v. Edinger, Inc., 1993 OK 130, ¶ 1, 862 P.2d 71, 73, we examined a trial court order prohibiting amendment to raise an affirmative defense, and found "that where the petition does not allege dates on which damage occurred, and no prejudice to the opposing party, nor undue delay is shown, a trial court abuses its discretion in refusing to allow a party to amend its answer to include the statute of limitations defense." We further recognized in Prough that while § 2008(C) generally requires affirmative defenses to be set forth specifically in a responsive pleading, the section must be viewed in harmony with the entire Oklahoma Pleading Code. Id. ¶ 4, 862 P.2d 71, 74. With the exception of the defenses outlined in 12 O.S.2011, § 2012(F),19 nothing in the code prohibits a party from amending their responsive pleading to raise an affirmative defense omitted from the original answer.20 Id. ¶ 5, 862 P.2d at 74. Following discovery, the trial court in Prough denied the defendant's request to amend its answer to assert the statute of limitations. Id. ¶ 2, 862 P.2d at 73. The defendant's request to amend was fifteen months after the plaintiff's complaint was originally filed; however, the plaintiff's petition did not provide specific dates on which the alleged damages occurred, and it was not until discovery had been conducted that defendant was able to ascertain the claims were time-barred. Id. ¶ 2, 862 P.2d at 73. Defendant promptly sought leave to amend. Id. ¶18 We weighed Prough lower court's decision to deny defendant's request to amend his answer under an abuse of discretion standard. Id. ¶ 6, 862 P.2d at 74. Recognizing the need to allow liberal granting of amendments under the pleading code, we explained: Section 2008 specifically states that § 2011 applies to all forms of pleadings, including answers. Because of § 2011, an attorney will be reluctant to claim the statute of limitations defense unless it appears that sufficient facts exist to support the defense when the answer is filed. Often, the applicability of the statute of limitations is not known until discovery is conducted. If amendments were not given freely, the defendant would be faced with the choice of either pleading a defense not known to be warranted or failing to assert a defense not apparent from the outset of the claim because of the fear of incurring sanctions. A court can best reach a proper decision on the merits, while at the same time not encouraging baseless claims and defenses, by granting amendment requests at that time when the claim or defense is shown to be warranted by substantiating facts. Id. ¶ 7, 862 P.2d at 75 (footnotes omitted). While the trial court is vested with discretion over whether to allow an amendment, the opinion further explained: [O]utright refusal to grant leave without any justifying reason appearing for the denial is an abuse of discretion, but there is no abuse if the court relies on a reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of amendment. Id. ¶ 9, 862 P.2d at 75 quoting Foman v. Davis, 371 U.S. 178 (1962) (emphasis added).21 Applying the Foman amendment standard, this Court noted that undue delay may constitute a sufficient justification for denying a request to amend an answer; we went on to explain that certain considerations must be undertaken when evaluating the delay. Id. ¶ 10, 862 P.2d at 76. Factors to consider include: 1) the number of previous amendment requests; 2) the timing of the request (before or after discovery is closed and a trial date set); and 3) the length of time the movant was aware of the applicability of the amendment. Id. ¶19 Under the facts and circumstances presented in Prough, we found it was erroneous to deny defendant's amendment request. Id. ¶ 11, 862 P.2d at 76. (concluding that despite a fifteen month delay, "neither undue delay, prejudice, nor any other justifying reason [was] shown to warrant the trial court's denial of the defendant's motion to amend."); but see Ahlschlager v. Lawton Sch. Dist., Indep. Sch. Dist. 008 of Comanche Cty., 2010 OK 41, ¶¶ 23-24, 242 P.3d 509, 516 (recognizing that an allegedly illegal contract did not deprive trial court of jurisdiction; illegality is an affirmative defense which must be timely raised or may be considered waived).22 Our decision in the present case does not conflict with the holding in Howell's Well Service, Inc. v. Focus Group Advisors, LLC. ¶20 Our most recent consideration of a party's right to assert a claim or defense not originally raised in a responsive pleading was in Howell's Well Service, Inc. v. Focus Group Advisors, LLC, 2021 OK 25, 507 P.3d 623.23 There, we reversed a trial court order finding defendants had waived their right to compel the parties' participation in arbitration. To justify the underlying order denying arbitration in Howell's Well Service, the trial judge concluded: (1) the defendants' failed to raise arbitration as a defense in their original answer; and (2) the defendants participated in the trial proceedings and failed to demand arbitration for seventeen months after service of the lawsuit. The Court of Civil Appeals affirmed the judgment, and we accepted certiorari. However, Howell's Well Service is clearly distinguishable from the present matter. ¶21 The facts in Howell's Well Service reflect that several individuals had entered into investment advisory agreements with Focus Group Advisors, LLC for purposes of managing those customers' financial portfolios. Contained within those investment advisory agreements were arbitration clauses. Plaintiffs filed suit against multiple defendants on May 2, 2013, in connection with the alleged mismanagement of client funds. Following several amendments to the petition and the passage of more than twenty months, plaintiffs finally served the defendants in January 2015. Counsel for Focus Group initially filed an appearance/reservation of time, and on February 12, 2015, filed an answer to plaintiff's third-amended petition. The answer neglected to raise the arbitration clause as a defense to litigation in state court. Roughly sixteen months later, on July 11, 2016, Focus Group filed a motion requesting the lawsuit be submitted to arbitration per the brokerage agreements. After requesting transfer of the cause to arbitration, Focus Group voluntarily attended mediation. Settlement efforts proved unsuccessful, and the case effectively sat dormant for nearly two years. A briefing schedule was set by the trial court, during which Focus Group filed a motion for summary judgment pertaining to the claims of two of the plaintiffs. ¶22 As noted, the trial court denied the motion seeking to compel arbitration. After being affirmed by COCA, we determined the ruling was erroneous and remanded the matter with directions to send the case to arbitration. This result, however, was attributable to a number of important factors which distinguish it from the present case. First, under both federal and state arbitration laws, there is a strong presumption favoring arbitration. Id. ¶ 15, 507 P.3d at 627. Second, the majority opinion in Howell's Well Service recognized that the right to invoke arbitration is not one of the enumerated affirmative defenses set forth in 12 O.S.2021, § 2008(C). Instead, adopting the rationale from federal circuit courts, we determined the phrase "[a]rbitration and award" in § 2008(C), "means an affirmative defense that a claim has already been resolved by an award in arbitration, not whether the parties claims should be adjudicated in court or through arbitration." Id. ¶ 12, 507 P.3d at 627. Accordingly, we found that the right to compel arbitration is not waived by the failure to assert it as a defense in the answer.24 Notwithstanding, we next weighed whether the arbitration clause could nevertheless be waived through a party's litigation conduct. ¶23 Again, we examined the aforementioned question in light of the overarching policy favoring arbitration under state and federal law. Id. ¶ 14, 507 P.3d at 627. To evaluate whether a party has waived its right to arbitrate claims brought in a court proceeding, we applied a balancing test taken from federal jurisprudence: 1. Whether a party has taken actions that are inconsistent with a right to arbitrate; 2. Whether the issue of arbitration was raised only after there had been significant preparation for litigation; 3. Whether the trial date is near or there has been a long delay in raising the issue of contractual arbitration rights; 4. Whether the party invoking the arbitration right has filed pleadings in the litigation without seeking a stay of the proceedings; 5. Whether the party seeking arbitration has engaged in discovery proceedings that are not available in arbitration or participated in other important intervening steps; and 6. Whether the opposing party has been prejudiced by the delay. Id. ¶ 15, 507 P.3d at 627-28 (quotation & footnote omitted). Applying these factors in Howell's Well Service, we noted that although there were hundreds of pages in the court file, the only pleadings filed by Focus Group were the company's answer and motion to compel arbitration.25 Id. ¶ 16, 507 P.3d at 628. We found that although Focus Group could have acted in a timelier manner, the company took no action inconsistent with their right to pursue arbitration: Defendants/Appellants took no action inconsistent with their arbitration rights. There had been no discovery at all involving them and no important deadlines had yet been imposed by the trial court. Indeed, the only activity between Plaintiffs/Appellees and Defendants/Appellants was a mediation which took place after the motion to compel was filed. This out-of-court mediation for which the litigation was stayed--a fact which further exhibits Defendants/Appellants' desire to defend this case in an alternative forum--was unsuccessful. Id. ¶19, 507 P.3d at 628. But more importantly, we found the "Plaintiffs/Appellees have failed to prove that this delay caused them any harm." Id. We went on to cite, with approval, several federal circuit cases which concluded that the mere passage of time was insufficient to overcome the strong presumption in favor of arbitration: Prior to raising their right to arbitrate this matter, the record is devoid of any litigation activity involving Defendants/Appellants other than a responsive answer. Defendants/Appellants had not taken any meaningful steps to encourage litigation of this case in court and their only proactive pleading was their motion to compel arbitration. No discovery had been taken or exchanged, no dates for trial were in place and a scheduling order had not been entered at the time of Defendants/Appellants' motion to compel. As such, and in light of multiple lengthy delays of their own, we decline to find that Plaintiffs/Appellees were materially prejudiced by the delay in the motion to compel arbitration. Id. ¶ 20, 507 P.3d at 629. ¶24 Under the teachings of Prough and Howell's Well Service, we must ascertain if there has been undue delay, bad faith, dilatory motive, and/or prejudice caused by the Plaintffs' failure to timely raise the illegality defense. Various federal decisions have thoroughly considered the subject.26 For example, the Fifth Circuit Court of Appeals, in affirming a district court decision to prohibit the late addition of an affirmative defense, explained: Unfair surprise and prejudice are central concerns underlying the requirement that a defendant timely plead affirmative defenses. Plaintiffs must be aware of issues outside of their petitions so that they can prepare oppositions and adjust their cases in light of new facts and issues. Whether there was unfair surprise or prejudice is a fact-specific inquiry based on the circumstances of the case. * * * * Here, the district court found that Tauch's failure to raise First KT's alleged payments until after Baron's summary-judgment motion unquestionably prejudiced Baron in its ability to respond because the claim would require proof of additional facts beyond the face of the complaint, the general allegations in Tauch's answer failed to provide any notice that defenses might be raised as the case progressed, all of the critical pretrial deadlines had passed or were about to expire, and even at the late date that Tauch raised his payment claim he did not request leave to amend. LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 402 (5th Cir. 2014) (quotations omitted). ¶25 Likewise, in Sky Harbor Air Service, Inc. v. Reams, 491 Fed.Appx. 875, Nos. 11--8004, 11--8025, 11--8062 (10th Cir. July 20, 2012), the Tenth Circuit affirmed a lower court decision which denied a late assertion of an affirmative defense based on an allegedly illegal contract. In doing so, the appellate panel recognized those factors which must be balanced by a court when considering a delayed assertion of an affirmative defense, including "whether the opposing party will suffer prejudice." Id. at 884. The Circuit Court noted that an amendment should be denied when an untimely affirmative defense is an attempt to make a pleading a moving target or to salvage a lost case by an untimely suggestion of new legal theories. Id. Amendment is improper when a party's failure to raise an affirmative defense can be attributed to "undue delay, bad faith or dilatory motive." Id. In reaching its decision to affirm the lower court, the Tenth Circuit explained: The district court's rejection of Sky Harbor's tardy affirmative defense was not an abuse of discretion. Sky Harbor was given the chance to litigate whether it was liable for breach of the Paint Shop lease, and it lost on that issue. In rejecting Sky Harbor's illegality defense, the district court was concerned with the principles of notice and fairness embodied in the pleading rules and with preventing the exploit[ation of] the liberal amendment policy of Rule 15(a)(2) to the detriment of final judgments and the expeditious conclusion of litigation. Its reasoning demonstrates a concern with the untimely suggestion of new theories and undue delay. Had the court allowed Sky Harbor to assert its late affirmative defense, the Defendants would have been forced to re-litigate the dispute on new bases ... and to incur new rounds of additional and costly discovery . . . depriving [them] of the meaningful value of obtaining summary judgment. Id. (quotations omitted); see also Reed v. Columbia St. Mary's Hosp., 915 F.3d 473, 478 (7th Cir. 2019)27 ("A defendant should not be permitted to lie behind a log and ambush a plaintiff with an unexpected defense."); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717-18 (8th Cir. 2008)("[defendant] waited to seek leave to plead the affirmative defense until two and a half years after the suit was filed; a month after the close of discovery; a month after it raised the defense in its summary judgment motion; almost eighteen months after the deadline for amending pleadings; and eight full months after it was actually aware of the preemption defense's applicability," thus allowing amendment was an abuse of discretion). ¶26 There can be no doubt that the record supports the trial court's determination of waiver in this case. Plaintiffs' last-minute attempt to raise the illegality defense could plainly be seen as undue delay, dilatory motive and/or bad faith. More importantly, had the trial court allowed Plaintiffs to amend their defenses on the eve of trial, it would have amounted to unfair surprise and been prejudicial to Olmstead. As noted previously, Plaintiffs did not raise the illegality claim until: (a) after the trial court had already awarded summary judgment to Olmstead on the issue of breach of contract; (b) more than ten (10) months after the close of discovery; (c) more than nine (9) months after the lower court's deadline for filing dispositive motions; (d) more than two years after the deadline to amend pleadings; and (e) almost four (4) years after the original lawsuit was filed by Plaintiffs. This new defense would obviously require Olmstead to completely re-think his litigation strategy, would have necessitated additional rounds of costly discovery, and would have further delayed a trial which had already languished for roughly four years. ¶27 But probably the most persuasive factor in supporting the trial court's finding of waiver in our view was Dr. Patel's access to all information concerning the illegality defense well before a lawsuit had even been filed. In fact, Dr. Patel's own testimony at trial indicated he had concerns prior to filing the lawsuit about potential legal ramifications associated with the structure of Olmstead's bonus. He explained, "[w]e talked often about it and every time we tried to come up with a mechanism there was some regulatory state or federal or what have you that we could not conform to."18 Thus, Plaintiffs' assertion of illegality did not depend on factual information gathered during the discovery process. Dr. Patel's awareness was certainly enough for the trial court to conclude that there had been undue delay, bad faith, dilatory motive, and prejudice. Our decision in An-Cor, Inc. v. Rehrman does not mandate consideration of the illegality defense in this case. ¶28 Despite the procedural history in this case, COCA effectively decided our courts are obligated, sua sponte, to scrutinize the legality/illegality of a contract in all cases, citing to our decision in An-Cor., Inc. v. Reherman, 1992 OK 109, 835 P.2d 93. However, we believe the decision in An-Cor is distinguishable from the present case. First, the illegality defense in An-Cor arose out of a contract alleged to have been secured through the bribery of public officials. Id. ¶¶ 2-4, 835 P.2d at 94. Second, the facts pertaining to the allegedly illegal contract came directly from contentions (a) set forth in the plaintiff's own petition; and (b) which were raised in a timely manner by the defendants via motion to dismiss/summary judgment. Id. at ¶¶ 2, 6, 7, 10, 835 P.2d at 94-96. Finally, and perhaps most significantly, the case law relied upon by the Court in An-Cor pre-dates the adoption of the Oklahoma Pleading Code. Id. ¶¶ 8-9, 11-12, 835 P.2d at 95-96. ¶29 Unlike An-Cor, nothing in Olmstead's petition included allegations, which on their face, suggested the employment agreement between Olmstead and Plaintiffs was illegal. Under the facts presented, we cannot say the claims of illegality, even if proven true, are of such an egregious nature that public policy demands ignoring the mandates of the Oklahoma Pleading Code and our jurisprudence concerning waiver of affirmative defenses. See 8 Williston on Contracts § 19:12 (4th ed.) ("[T]here are cases when a court simply cannot ignore the illegality of a contract, no matter the parties' prior conduct. If the illegality is serious enough, a court may raise it sua sponte to avoid becoming an instrument of injustice.") (quoting PolyOne Corporation v. Westlake Vinyls, Inc., 937 F.3d 692, 701 (6th Cir. 2019)). In the present case, Plaintiffs drafted the subject agreement, and the contract simply provided remuneration to Olmstead in connection with his employment. Both the federal and state anti-kickback statutes provide certain exceptions, including compensation for patient referrals secured through a bona fide employment relationship.28 See 42 USCA § 1320a-7b(b)(3)(B)29; 63 O.S.2021, § 1-742(B)(2) and (3).30 Plaintiffs' assertion of "failure to state a claim" as an affirmative defense was insufficient to encompass a claim of illegality. ¶30 Lastly, we briefly address Plaintiffs' contention that the defense of illegality was properly preserved when they asserted Olmstead's petition failed to state a claim for which relief could be granted under 12 O.S. § 2012(B)(6). It should be noted that this matter was only raised incidentally on appeal by including the suggestion in a footnote, without any significant development of the argument. We generally do "not consider assignments of error unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken." S.W. v. Duncan, 2001 OK 39, ¶ 31, 24 P.3d 846, 857. Regardless, we believe this issue has no merit. Asserting generic language intended to cover a broad range of defenses was insufficient in this case. See Collision Communications Inc. v. Nokia Solutions and Networks OY, 2024 WL 531289, at *3 (D.N.H. Feb. 9, 2024) ("A defendant who raises an affirmative defense using general language or 'in a largely uninformative way' risks waiver of the defense"); Pratcher v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727, 736 (Tenn. 2013) ("A generic invocation of the words 'failure to state a claim' cannot be used as a vehicle to assert an affirmative defense. An affirmative defense must be specifically pleaded.") (internal quotations omitted).31 Conclusion ¶31 As we have previously noted, a party is obliged to raise affirmative defenses in a responsive pleading or to promptly seek amendment of pleadings without undue delay. See e.g., Furr, 1991 OK 93, ¶¶ 23-24, 817 P.2d at 1272-73 (finding that failure to plead affirmative defense operated as a waiver). Our jurisprudence gives a trial judge discretion to find that an affirmative defense, including illegality, has been waived through the conduct of a litigant. ¶32 Under the facts and circumstances of this case, the trial judge did not abuse her discretion by prohibiting the Plaintiffs from raising illegality of contract as an affirmative defense. Plaintiffs failed to raise illegality in their initial responsive pleading, and did not timely seek to amend their answer. Further, Plaintiffs neglected to raise the illegality defense until after the trial court had already awarded summary judgment to Olmstead on the issue of breach of contract; more than ten months after the close of discovery; more than nine months after the lower court's deadline for filing dispositive motions; and almost four years after the original lawsuit was filed. Plaintiffs had sufficient information from the beginning of the case from which to raise the illegality defense, yet they withheld its assertion until just prior to the pretrial conference. The record is more than sufficient to support a finding that the Plaintiffs' delay was unjustified and prejudicial. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ORDER STRIKING THE ILLEGALITY AFFIRMATIVE DEFENSE WAS NOT AN ABUSE OF DISCRETION AND IS AFFIRMED; MATTER IS REMANDED TO THE COURT OF CIVIL APPEALS TO RESOLVE ANY REMAINING UNDECIDED ISSUES RAISED IN THE APPEAL. CONCUR: KANE, C.J., ROWE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH AND DARBY, JJ. NOT PARTICIPATING: KUEHN, J. FOOTNOTES 1 This opinion refers to these businesses collectively as Plaintiffs. 2 Evidence relating to who Olmstead's principal employer was, and the who were the contracting parties, was murky at best. The offer letter sent by Dr. Patel noted that the job position was with TAP, although bonuses would be based on referrals to "the center as well as urine analysis to the partner lab." Olmstead's Ex. 1. Olmstead testified that Tulsa Ambulatory Procedure Center was an outpatient surgery center, OPW was a pain management clinic, and PAL was a urine toxicology testing facility. Tr. Trans. p. 11. They were all operated at the same location, and while each was a separate operation, the record reflects they were sometimes treated as one interrelated enterprise. See Plaintiffs' Ex. 8, Employer Compliance Acknowledgement (referring to TAP, OPW and PAL as "the company"); Tr. Trans., p. 10. Even Plaintiffs filings in this case refer to all three entities as TAP. See Answer to Pet. for Writ of Certiorari. According to tax records, Olmstead was employed by and received wages from all three of the entities. Plaintiffs' Ex. 4 & 5, Olmstead tax records for 2015 and 2016. 3 Curiously, the offer letter suggested, that if accepted by Olmstead, a subsequent employment contract would be presented for approval. The record does not reflect whether any formal employment agreement was signed by Olmstead after his work commenced. 4 Olmstead's Ex. 1. 5 Olmstead's Exs. 1 & 2. An electronic mail message from Dr. Patel informed Olmstead that the "bonus structure" would begin six months after his start date; however, this delay in bonus payments was not included in the actual written agreement. Plaintiffs' Ex. 2, (e-mail from Jayen Patel, M.D. to Olmstead). 6 Tr. Trans., pp. 11, 14-15, 22. 7 Olmstead alleged his dismissal occurred after informing Nicole Patel, M.D. (Olmstead's sister and Dr. Patel's wife/business partner) that Dr. Patel had removed marital property from the TAP clinic which was potentially subject to property division in the Patels' ongoing divorce. Olmstead's Counterclaim and Third Party Claim, O.R. at 10. 8 Plaintiffs sued Olmstead for soliciting established patients for a competitor, allegedly in violation of a separate agreement and an employee handbook. On January 21, 2020, the trial court issued an order awarding Olmstead summary judgment on all of Plaintiffs' theories of recovery. These claims are not under consideration in this appellate proceeding. 9 Olmstead also raised claims for infliction of emotional distress, abuse of process, and wrongful termination. These claims are not at issue in this appeal. A review of the district court docket indicates Olmstead voluntarily dismissed the abuse of process and wrongful termination claims prior to the pretrial conference. Olmstead's emotional distress claim was not included in the pretrial conference order and therefore has been abandoned. Pretrial Conference Order, O.R. at 672; 12 O.S.2021, Ch. 2, App., Dist. Ct. R 5 (I). 10 Plaintiffs [sic] and Third Party Defendants [sic] Answer, O.R. at 19. 11 Olmstead filed a motion to compel on June 5, 2018, alleging that during discovery Plaintiffs failed to produce a document which tracked information on Olmstead's referrals. The motion further maintained that Plaintiffs failed to respond to interrogatories relating to the same document. Olmstead's Motion to Compel, O.R. at 21-259. At a hearing on September 26, 2018, the trial court directed Plaintiffs to provide additional written answers and documents by October 12, 2018. Olmstead filed his motion seeking sanctions on September 3, 2020. Olmstead's Motion for Discovery Sanctions, O.R. at 464. A second order requiring Plaintiffs to supplement discovery responses was entered as part of an amended scheduling order. Ambiguously, this order entered on August 1, 2019 ordered Plaintiffs to supplement their discovery answers by no later than July 31, 2019. Amd. Sched. Order, O.R. at 276. 12 Order re Motion for Discovery Sanctions, Dec. 2, 2020, O.R. at 590. 13 Though the record does not include an order substituting counsel, we note the pleadings reflect Jayen Patel, M.D. filed a pro se response to a motion on July 27, 2020. Shortly thereafter, new counsel entered an appearance in the case. See Plaintiffs' Response to Motion for Sanctions, O.R. at 515-16 (filed on Sept. 21, 2020). 14 See Olmstead's Motion to Strike, Ex. A, O.R. at 565 (filed on Oct. 6, 2020). The attachment is a copy of Plaintiffs' proposed defenses as set forth in the draft pretrial conference order. Plaintiffs new counsel identified 42 U.S.C. § 1320a-7b and 15 O.S.2011, §§ 104, 109 (regarding voidability of unlawful contracts and contracts with unlawful consideration) in support of his illegality affirmative defense. Plaintiffs later invoked Oklahoma's Healthcare Anti-Kickback law, 63 O.S.2011, § 1-742, in their response to Olmstead's motion to strike. Objection to Olmstead's Motion to Strike Affirmative Defense, O.R. at 574-75. It should be noted that the illegality defense was also raised in Plaintiffs' response to Olmstead's motion for discovery sanctions. 15 The trial court's deadline for filing dispositive motions was on December 13, 2019. 16 Tr. Trans., Mar. 2, 2021, pp. 7-8. Both attorneys neglected to mention whether the amount of revenue to be utilized in calculating the bonus was net or gross. 17 We accepted certiorari solely to consider whether the trial court should have allowed the Plaintiffs to present their illegality defense. See Okla. Sup. Ct. R. 1.180. 18 Notably, this occurred after Plaintiffs retained new counsel. Olmstead's Motion to Strike, Ex. A, O.R. at 557, 565. 19 Section 2012(F) reads: F. WAIVER OR PRESERVATION OF CERTAIN DEFENSES. 1. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or lack of capacity of a party to be sued is waived: a. if omitted from a motion that raises any of the defenses or objections which this section permits to be raised by motion, or b. if it is not made by motion and it is not included in a responsive pleading or an amendment thereof permitted by subsection A of Section 2015 of this title to be made as a matter of course. A motion to strike an insufficient defense is waived if not raised as in subsection D of this section. 2. A defense of failure to join a party indispensable under Section 2019 of this title may be made in any pleading permitted or ordered under subsection A of Section 2007 of this title or at the trial on the merits. A defense of another action pending between the same parties for the same claim or a defense of lack of capacity of a party to sue may be made in any pleading permitted or ordered pursuant to the provisions of subsection A of Section 2007 of this title or at the pretrial conference. 3. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. 4. A waiver of the defense in paragraph 6 of subsection B of this section does not preclude a later contention that a party is not entitled to any relief as a matter of law, either by motion for summary judgment, or by demurrer or motion at or after trial. 20 The unanimous opinion recognized the waiver directives contained in § 2012(F); however, the defense of illegality is not among the defenses set forth in that section. 21 Foman dealt with amendments to a complaint under Rule 15 of the Federal Rules of Civil Procedure. Id. at 179, 182. 22 In Ahlschlager, the defendant school district argued on appeal that a contract was illegal under Oklahoma law and, therefore, the trial court lacked jurisdiction to enforce it. Id. ¶¶ 23-24, 242 P.3d at 526. We rejected the argument, finding the district confused lack of subject matter jurisdiction with "its own failure to raise illegality as an affirmative defense as required by section 2008 of title 12 . . . . [A]ffirmative defenses must be raised by the parties or are waived." Id. ¶ 24, 242 P.3d at 516. 23 Despite being published more than eight months before initial briefs were due in this proceeding, Howell's Well Service was not referenced by either party until discussed by Plaintiffs in their reply brief on appeal. 24 We explained, "any other interpretation would contradict both the OUAA, which specifically provides for arbitration rights to be raised by motion (without mention of responsive pleadings) as well as Oklahoma's strong public policy favoring arbitration of disputes." Id. ¶ 13, 507 P.3d at 627. 25 In Howell's Well Service, we examined the trial court docket as of the time Focus Group filed its motion to compel arbitration. Id. 26 Because the Oklahoma Pleading Code is derived from the Federal Rules of Civil Procedure, this Court may look to federal decisions relating to parallel FRCP provisions to assist us in our interpretation of a particular rule or pleading standard. See Fanning v. Brown, 2004 OK 7, ¶ 20, n.9., 85 P.3d 841, 847; Heffron v. Dist. Ct. of Okla. Cnty., 2003 OK 75, ¶¶ 13-14, 77 P.3d 1069, 1076. 27 In Reed, the Seventh Circuit found the district court erroneously considered an affirmative defense, pointing to several critical factors: (1) defendant offered no excuse to justify the delay in presenting the affirmative defense so late in litigation; (2) the defense did not depend on information acquired via discovery as with other defenses (statute of limitations, estoppel, waiver, etc); and (3) the affirmative defense was not raised until after discovery was completed and time/money had been expended in the litigation. Id. at 482. 18 Tr. Trans., p. 54. 28 In New Boston Gen. Hosp., Inc. v. Texas Comm'n, 47 S.W.3d 34, 38-39 (Tex. Ct. App. 2001), the Texas Court of Appeals held that a health care employee's compensation arrangement, which was based on solicitation of new patients, did not violate federal and state anti-kickback laws because the employee was subject to a safe harbor provision for bona fide employees. See also, United States v. Aids Healthcare Found., Inc., 262 F.Supp.3d 1353, 1361-63 (S.D. Fla. 2017) (bonuses paid by healthcare provider to bona fide employees for referrals fell within the safe harbor protection of the anti-kickback statutes). 29 Section 1320a-7b(b)(3)(B) provides: (3) Paragraphs (1) and (2) shall not apply to-- * * * * (B) any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services; 30 Section 1-742 reads in relevant part: B. This section shall not be construed to prohibit: * * * * 2. Remuneration for advertising, marketing or other services that are provided for the purpose of securing or soliciting patients, provided the remuneration is: a. set in advance, b. consistent with the fair market value of the services, and c. not based on the volume or value of any patient referrals or business otherwise generated between the parties; and 3. Any payment, business arrangements or payments practice not prohibited by 42 U.S.C., Section 1320a-7b(b), or any regulations promulgated pursuant thereto. 31 See also Gensler, Steven, Federal Rules of Civil Procedure, Rules and Commentary, Vol. I, Rule 8, General Rules of Pleading, pp. 223-24, wherein the author explains the differences between affirmative defenses (i.e., illegality, statute of limitation, etc.) and negative defenses (i.e., failure to state a claim): Defendants must plead their affirmative defenses. An affirmative defense is a defense that does not seek to negate the elements of the plaintiff's claim, but instead provides a basis for avoiding liability even if the elements of the plaintiff's claim are met. A position can also be deemed an affirmative defense if it does not speak to liability, but only limits damages. But in either posture, affirmative defenses tend to have a "yes, but" logical structure: "Yes" I engaged in the alleged conduct, "but" I am nevertheless not liable. Affirmative defenses also differ from denials because the defendant bears the burden of proof as to affirmative defenses. Defendants in federal court must plead their affirmative defenses or face potential waiver. The purpose of requiring defendants to plead their affirmative defenses is to give the plaintiff notice and an opportunity to meet the defense and show, if it can, why the defense should not succeed. Defendants cannot reserve the right to assert affirmative defenses later; that would defeat the purpose of giving notice to the plaintiff. * * * * Comparison with pleading negative defenses. A negative defense is one the contests the plaintiff's ability to meet its burden to establish an element of the plaintiff's case. For example, the defense of "fails to state a claim" is a negative defense because it asserts a defect or shortcoming in the plaintiff's case. So too would be a defense that a defendant did not owe the plaintiff a duty or that a defendant did not breach a duty that was owed. Negative (or "ordinary") defenses are governed by Rule 8(b), not Rule 8(c). As discussed earlier, negative defenses arise organically from the defendant's denials because the plaintiff has the burden of proving all aspects of its case that are not admitted. While Rule 8(b) directs defendants to "state" their defenses, the failure to do so does not trigger waiver because the plaintiff still must meet its burden of proving up its case.

876a8481-54fb-48af-9ce4-8f19bcbaf721

MATHIS v. KERR

oklahoma

Oklahoma Supreme Court

MATHIS v. KERR2024 OK 52Case Number: 120246Decided: 06/25/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SPENCER MATHIS and JADEN FENSTERMAKER, Plaintiffs/Appellants,v.JAMES KERR, 5280 SOLUTIONS LLC, DASH LOGISTICS LLC, ACCELROUTE LLC, Defendants/Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IHonorable Douglas W. Golden, Trial Judge ¶0 The plaintiffs/appellants worked for and delivered Amazon packages in the Tulsa, Oklahoma, area for the defendant/appellee, James Kerr. After Kerr fired them, the plaintiffs filed a lawsuit against him. Kerr sought to compel arbitration pursuant to arbitration provisions of the plaintiffs' employment contracts. The plaintiffs objected, arguing that they could not be compelled to arbitrate because federal and state law precluded arbitration. The trial court disagreed, granted the motion to compel arbitration, and stayed the lawsuit until completion of arbitration. The plaintiffs appealed, and the Court of Civil Appeals affirmed. We granted certiorari and hold that: 1) employees who deliver Amazon packages are exempted from arbitration under federal law; and 2) the district court's exclusive jurisdiction over the retaliatory discharge claims precludes arbitration of those claims under Oklahoma law. STAY OF NOVEMBER 20, 2023, LIFTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. Caleb Salmon, Tulsa, Oklahoma, for Plaintiffs/Appellants. Justin P. Grose, Oklahoma City, Oklahoma, for Defendants/Appellees. KAUGER, J.: ¶1 We granted certiorari to address the first impression questions of whether: 1) employees who deliver Amazon packages are exempted under federal arbitration law; and 2) Oklahoma law precludes enforcement of the employment arbitration agreements in this cause. We hold that: 1) federal law exempts employees who deliver Amazon packages from arbitration; and 2) the district court's exclusive jurisdiction over retaliatory discharge claims precludes arbitration of those claims under Oklahoma law. .FACTS ¶2 The plaintiff/appellant, Spencer Mathis (Mathis/employee) worked as a local delivery contractor for Amazon, Inc., in the Tulsa area in Creek County, Oklahoma. The plaintiff/appellant, Jaden Fenstermaker (Fenstermaker) supervised Mathis. Their paychecks came from two different LLCs, 5280 Solutions and Dash Logistics. The defendant/appellee, James Kerr (Kerr/employer) apparently ran both companies.1 ¶3 Kerr employed drivers to drive delivery vans to pick up packages from a local warehouse and deliver them to Amazon customers. While delivering packages on March 27, 2021, a large dog bit Mathis on the knee. He subsequently filed a workers' compensation claim, received medical treatment, and was required to take time off work. When he returned to work, Mathis continued to suffer knee pain. Mathis alleges that on May 12, 2021, Kerr promised to give him country routes with fewer stops that require climbing in and out of the truck with packages. ¶4 However, the employee also alleges that, instead, Kerr: 1) told the dispatcher to assign Mathis to the most difficult routes with 190 or more stops per day; and 2) sought to induce the employee to quit and undermine the workers' compensation claim. Kerr also asked Fenstermaker to discourage Mathis from pursing a workers' compensation claim. On May 22, 2021, Mathis asked to be put on the promised country routes because his knee hurt, and it was hard for him to keep up. The employer instructed Fenstermaker to tell Mathis if he did not drop the claim, it would follow him around for the rest of his career and no one would want to hire him. ¶5 A few days later, without warning, Kerr fired Mathis and Fenstermaker. The employees attempted to work for another Amazon contractor, but were denied employment because Kerr told the contractor about the workers' compensation claim. Fenstermaker also alleges that after he was fired, Kerr used Fenstermaker's business credit card for which Fenstermaker was personally liable. Kerr's unauthorized use of the card caused Fenstermaker to incur personal liability for charges he did not make. ¶6 On July 12, 2021, the employees filed a lawsuit against Kerr and his companies in the District Court of Creek County, Oklahoma. Between the two of them, Mathis and Fenstermaker alleged claims which included wrongful workers' compensation retaliation, tortious interference with contract and business relations, identity theft, and deceit. ¶7 On August 30, 2021, Kerr filed a motion to compel arbitration, arguing that both employees' employment contracts contained mandatory arbitration provisions which required arbitration of their claims. On September 20, 2021, the employees responded, arguing that because: 1) federal law exempts transportation workers engaged in interstate commerce from arbitration agreements, Mathis and Fenstermaker were not bound by the arbitration provisions of their employment contracts; and 2) the arbitration agreements were also unenforceable under Oklahoma law because the district court had exclusive jurisdiction over this cause. ¶8 On January 10, 2022, the trial court held a hearing on the motion to compel arbitration. On February 1, 2022, it filed an order granting the motion compelling arbitration of the plaintiffs' claims and staying the cause until the completion of arbitration. The plaintiffs appealed on March 3, 2023, and the Court of Civil Appeals affirmed. We granted certiorari on September 25, 2023, to address the first impression questions. ¶9 However, on September 29, 2023, the United States Supreme Court granted certiorari in the case of Bissonnette v. LePage Bakeries Park St., LLC., 601 U.S. ___, 144 S. Ct. 905 (2024). Bissonette concerned whether local Connecticut delivery drivers of nationwide distributed baked goods were exempted from arbitration under federal law. On October 19, 2023, Amazon.com and Amazon Logistics filed a Petition for Certiorari for in Amazon v. Miller, No. 23-424, ___ S.Ct. ___, (2024 WL 1706098).2 Amazon concerned whether Amazon delivery drivers who make last-leg local deliveries of Amazon goods shipped from other states or countries to consumers were also exempt from arbitration under federal law. ¶10 Because these two cases appeared to be dispositive of the federal law issue in this cause, we issued a stay on November 20, 2023, until the United States Supreme Court resolved both cases. On April 12, 2024, the United States Supreme Court issued an opinion in Bissonnette, and on April 22, 2024, it denied certiorari in Amazon. Consequently, we lift the stay to address the issues presented and to apply the two United States Supreme Court cases to this cause. I.FEDERAL LAW EXEMPTS EMPLOYEES WHO DELIVER AMAZON PACKAGES FROM ARBITRATION. ¶11 The employees argue that their arbitration agreements are unenforceable and invalid because they were workers engaged in interstate commerce and federal law exempts such workers from arbitration. The employer argues that federal law is inapplicable, and Mathis and Fenstermaker are bound by their employment arbitration agreements. A. The Exclusion of Workers Engaged in Interstate Commerce from Arbitration. ¶12 The Federal Arbitration Act (FAA) applies to arbitration agreements in contracts involving commerce.3 It makes arbitration agreements valid, irrevocable, and enforceable, unless there are legal or equitable grounds to revoke them.4 However, it expressly does not apply to contracts of employment of a "class of workers engaged in foreign or interstate commerce."5 ¶13 Prior to June of 2022, federal circuit courts had reached conflicting decisions on what constituted a "class of workers engaged in foreign or interstate commerce" under the FAA.6 One of those courts was the United States Court of Civil Appeals for the 9th Circuit. In Rittman v. Amazon.com Inc., 971 F.3d 904 (9th Cir. 2020) cert. denied, Amazon.com, Inc., v. Rittman, 141 S. Ct. 1374 (2021), the plaintiffs contracted with Amazon Logistics, Inc., to provide delivery services for AmFlex. ¶14 Amazon Logistics, Inc., is a subsidiary of Amazon.com, Inc., an online retailer that sells its own products, and provides fulfillment services for third-party sellers who also sell their products on Amazon.com. In the AmFlex program, Amazon contracted with individuals to make "last mile" deliveries of products from Amazon warehouses to the products' destinations using the AmFlex smart phone application. ¶15 AmFlex participants used a personal vehicle, bicycle, or public transportation, to deliver products ordered through the Amazon website or mobile applications. They picked up assigned packages from a local Amazon warehouse and drove an assigned route to deliver the packages. AmFlex delivery providers occasionally crossed state lines to make deliveries, but most of their deliveries took place intrastate. At the end of each shift, the delivery providers returned undelivered packages to Amazon warehouses. The 9th Circuit held that Amazon Flex delivery drivers were precluded from arbitration because they were engaged in interstate commerce. ¶16 In Carmona v. Domino's Pizza LLC., 21 F.4th 627 (9th Cir. 2021), cert. granted, Domino's Pizza, LLC., v. Carmona, 143 S. Ct. 361, 214 L. Ed. 2d 167 (2022) the 9th Circuit Court also determined that three delivery drivers were within the class of workers engaged in interstate commerce, and therefore exempt from arbitration under the FAA. In Carmona, suppliers from outside the state supplied the ingredients for making pizzas and delivered them to a Domino's Supply Center. At the Supply Center, Domino's employees packaged and prepared the ingredients to be sent to franchisees. Domino's drivers then delivered the goods from the Supply Center to franchisees. ¶17 The delivery drivers sued Domino's, alleging violations of state labor laws. The 9th Circuit Court affirmed the trial court's denial of a motion to compel arbitration pursuant to the drivers' employment contracts. The United States Supreme Court granted certiorari in Carmona, vacated the opinion, and remanded it back to the 9th Circuit for further consideration and application of Southwest Airlines Co., v. Saxon, 596 U.S. 450, 142 S. Ct. 1783, 213 L. Ed. 2d 27 (2022).7 ¶18 Saxon was a June 6, 2022, decision of the United States Supreme Court. Latrice Saxon, an airline ramp supervisor for Southwest Airlines, filed a putative class action against the airlines for failure to pay proper overtime wages. Southwest sought to dismiss the lawsuit because Saxon's employment contract required arbitration of wage disputes individually. Saxon claimed she was exempt from arbitration based on the FAA exclusion of a "class of workers engaged in foreign or interstate commerce." ¶19 Southwest employed ramp agents to physically load and unload baggage, airmail and freight. It employed ramp supervisors such as Saxon to train and supervise teams of ramp agents. It was undisputed that ramp supervisors also stepped in frequently to load and unload cargo alongside ramp agents. The Court addressed whether Saxon was within the exempted class and if so, how to make such a determination. ¶20 First, the Court determined how to define the relevant "class of workers." The Court recognized that the term "workers" refers to the actual work that members of the class, as a whole, typically carry out. It said that "Saxon is therefore a member of a 'class of workers' based on what she does at Southwest, not what Southwest does generally."8 Because Southwest did not dispute that Saxon frequently loaded and unloaded cargo, the Court concluded that she belonged to a class of workers who physically load and unload cargo on and off airplanes on a frequent basis. ¶21 The next question was whether Saxon's class was "engaged in foreign or interstate commerce." In this regard, the Court said that: 1) the "loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically part of it;" and 2) "airline employees who physically load and unload planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods." Consequently, the Court held that Saxon's class was a "class of workers engaged in foreign or interstate commerce." ¶22 The Court further noted that cargo loaders were intimately involved with commerce (e.g. transportation) of cargo which is bound for interstate transit. It said: [T]here could be no doubt that [interstate] transportation [is] still in progress, and that a worker is engaged in that transportation, when she is 'doing the work of unloading' or loading cargo from a vehicle carrying goods in interstate transit.9 After Saxon, the 9th Circuit Court of Appeals, reconsidering Carmona, supra, found no inconsistency with Saxon. Consequently, the 9th Circuit Court of Appeals reached the same conclusion it did the first time -- that the FAA excluded the delivery drivers from arbitration. The United States Supreme Court denied certiorari on April 22, 2024.10 B.Amazon delivery drivers fall within the arbitration exemption of the FAA. ¶23 Bissonnette v. LePage Bakeries Park St., LLC., 601 U.S. ___, 144 S. Ct. 905 (2024), involved Flower Foods, a company who produces and markets baked goods that are distributed nationwide. Flower Foods baked the goods and sent them to a Connecticut warehouse. The plaintiffs were franchisees who owned the rights to distribute the baked goods in certain parts of Connecticut. The plaintiffs picked up baked goods and distributed them to local shops. The plaintiffs also found new retail outlets, advertised, set up promotional displays, and maintained their customers' inventories by stocking shelves and replacing expired products. ¶24 After the plaintiffs sued Flower Foods and two of its subsidiaries for violating state and federal wage laws, Flower Foods sought to compel arbitration pursuant to employment arbitration agreements. The 2nd Circuit Court of Appeals held that the FAA was inapplicable because the plaintiffs were in the baking industry, and not the transportation industry. The plaintiffs sought review by the United States Supreme Court. The United States Supreme Court held a worker need not be in the transportation industry to fall within the FAA exemption to arbitration, but that any exempt worker must at least play a direct and necessary role in the free flow of goods across borders. It also expressly noted that it was not deciding whether the petitioners were transportation workers or that petitioners were not "engaged in foreign or interstate commerce" within the meaning of § 1 because they deliver baked goods only in Connecticut. ¶25 In a strikingly similar cause to this one, the 9th Circuit Court of Appeals in Miller v. Amazon.com, Inc., No. 21-36048, 2023 WL 5665771, cert. denied, Amazon.com, Inc., v. Miller, No. 23-424, ___ S.Ct. ___, (2024 WL 1706098) determined that Amazon delivery drivers fall within the arbitration exemption of the FAA. In Miller, the plaintiffs worked as Amazon Flex delivery drivers making last-leg deliveries of Amazon good shipped from other states or countries to consumers, as well as deliveries of food, groceries and packages stored locally that may be eligible for tips. The delivery drivers sued Amazon for failing to honor a promise that workers would receive 100% of the tips that customers added for tip-eligible deliveries, in violation of Washington state law. ¶26 The 9th Circuit Court of Appeals held that the drivers were exempt from arbitration under the FAA, noting that the drivers have only one contract of employment which governs all of their work, including shifts for both last-mile deliveries as well as shifts for local tip-producing deliveries. The United States Supreme Court denied certiorari on April 22, 2024, leaving the 9th Circuit opinion intact. ¶27 Here, given the facts and holdings of the current decisions of the United States Supreme Court and 9th Circuit Court of Appeals involving employees like the ones involved in this cause, we can only reach one conclusion -- employees who deliver Amazon packages are exempt from arbitration under federal law. In our view, whether the employees actually cross a state line may be a relevant factor, but it is not dispositive of this cause because Amazon delivery drivers engage in interstate commerce nearly every time they deliver goods shipped from other states or countries to consumers according to the 9th Circuit's rationale. The employer's answer to the petition for certiorari acknowledges that both employees delivered packages. Consequently, they are both included within the excluded class of workers. II.THE DISTRICT COURT'S EXCLUSIVE JURISDICTION OVER RETALIATORY DISCHARGE CLAIMS PRECLUDES ARBITRATION OF SUCH CLAIMS. ¶28 Aside from the applicability of the FAA, neither party argues that federal law exclusions preempt state arbitration agreements,11 or that the entire agreement was not validly entered into, is ambiguous, or invalid under other contract law principles. The agreement expressly provides that in the event the FAA is found inapplicable, state law shall govern.12 The employer argues even if the arbitration is not required under federal law (ie., the FAA exemption applies to the employees to exempt them from arbitration), they can still be compelled to arbitrate pursuant to the arbitration agreement and Oklahoma law. The employees disagree, arguing that because Oklahoma law provides the exclusive remedy in the district courts, arbitration is precluded. A.The history of district courts' exclusive remedy. ¶29 Between the two employees, their claims include wrongful workers compensation retaliation, tortious interference with contract and business relations, identity theft, and deceit. In Thompson v. Bar-S Foods Co., 2007 OK 75, ¶¶11-14, 174 P.3d 567, this Court discussed an employee's wrongful termination because she filed a workers' compensation claim. The cause concerned whether the employee was required to pursue her claim through arbitration because she signed an arbitration agreement. Additionally, the employee argued that because retaliatory discharge actions relating to workers' compensation claims are to be resolved in the district courts, she should not have to submit to arbitration. ¶30 The statute in effect at the time was 85 O.S. 2001 §7. It provided: Except as otherwise provided by law, the district courts of the state shall have jurisdiction, for cause shown to restrain violations of this act. Bar-S argued that the language in the statute did not show any legislative intent to create exclusive jurisdiction in the district courts of Oklahoma. In other words, the statutory language did not preclude arbitration of retaliatory discharge issues. Indeed, nowhere in the statute was the word "exclusive." This Court did not settle Bar-S' argument because the arbitration agreement provided for unilateral change by the employer. Accordingly, we determined it to be unenforceable. Nevertheless, the Legislature began overhauling the workers compensation regime four years after Thompson and repealed the statute. ¶31 In 2013, the Legislature enacted the Administrative Workers' Compensation Act,13 (the Act) to govern workers compensation claims. The new 85A O.S. Supp. 2013 §7 (which became effective February 1, 2014), required retaliatory discharge claims to be heard by a Workers Compensation Commission and the Legislature added the terms "exclusive" to jurisdiction and to the remedies provided.14 ¶32 In 2019, the Legislature again amended the statute to provide exclusive jurisdiction in the district courts of Oklahoma. The statute has not been amended since 2019, and 85A O.S. 2021 §7 currently provides in pertinent part: A. An employer may not retaliate against an employee when the employee has in good faith: 1. Filed a claim under this act;2. Retained a lawyer for representation regarding a claim under this act;3. Instituted or caused to be instituted any proceeding under the provisions of this act; or4. Testified or is about to testify in any proceeding under the provisions of this act. B. The district courts shall have exclusive jurisdiction to hear and decide claims based on this section. . . . H. The remedies provided for in this section shall be exclusive with respect to any claim arising out of the conduct described in subsection A of this section. (Emphasis supplied.) The Act provides, with a few exceptions, exclusive remedies to all employees -- exclusive to all other rights and remedies.15 Furthermore, the Act requires courts to strictly construe its provisions.16 ¶33 Because of the legislative changes, the district court's exclusive jurisdiction, and the legislative strictures of strict construction, it appears that §7 shows legislative intent to guarantee both employers and employees entitlement to settle wrongful retaliation disputes such as this in the district courts of Oklahoma and no other forum. Thus, arbitration of such a claim is statutorily prohibited. Nevertheless, even if the changes were not such a clear indication of the Legislature's intent, the changes, coupled with the application of the rationale of Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, ¶¶24-25, 155 P.3d 16, as discussed below, lead us to the same conclusion. B.The Directives of the Workers' Compensation Act Prevail Over the Uniform Arbitration Act. ¶34 Oklahoma's Uniform Arbitration Act, 12 O.S. 2021 §§1851-1881 applies to all agreements to arbitrate.17 Generally, Oklahoma's public policy favors arbitration agreements.18 However this partiality is not unyielding. In Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, ¶¶24-25, 155 P.3d 16, this Court addressed the enforceability of an arbitration agreement between a nursing home resident and the nursing home. The Court unanimously held that because the Nursing Home Care Act, 63 O.S. 2001 §1-193919 voided any waiver of the right to commence an intentional or negligent action against a nursing home owner or licensee, the arbitration agreement at issue was unenforceable. ¶35 The rationale for determining that the arbitration agreement was unenforceable was that the specific statute in the Nursing Home Care Act controlled over the general Oklahoma Uniform Arbitration Act. The employer argues that Bruner is distinguishable because the Nursing Home Act guaranteed a jury trial. However, this argument is unconvincing because, while 85A O.S. 2021 §7 may not expressly guarantee a jury trial, it does guarantee the district court as the specific forum for both employers and employees to resolve retaliatory discharge claims. Accordingly, we remand the cause to the district court for proceedings consistent with this opinion including the determination of facts or theories existing under law or equity which would disfavor or prohibit arbitration of any of the plaintiffs' remaining claims. CONCLUSION ¶36 Because of the recent decisions of the United States Supreme Court and the 9th Circuit Court of Appeals, involving delivery drivers of Amazon goods, we hold they are exempt from federal arbitration law. Furthermore, to the extent the Oklahoma Legislature has required workers' retaliation claims to be exclusively resolved in the district courts, state law precludes arbitration of those disputes. Nevertheless, fact questions remain regarding whether the other claims alleged by the plaintiffs should be arbitrated. STAY OF NOVEMBER 20, 2023, LIFTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. ROWE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH, DARBY, JJ., concur. KANE, C.J., dissents. KUEHN, J., concurs in part, dissents in part (by separate writing.) FOOTNOTES 1 Accusations against Kerr include that he deliberately paid employees from two different companies in order to avoid complying with overtime payment laws. These accusations are not included within the scope of this cause. 2 The Petition for Certiorari was for review of the Ninth Circuit opinion in Miller v. Amazon.com, Inc., No. 21-36048, 2023 WL 5665771 (9th Cir. Sept. 1, 2023). 3 9 U.S.C. §1 (2018) provides: "Maritime transactions", as herein defined, means charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction; "commerce", as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. 4 9 U.S.C.. §2 (2018., amended 2022) provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 5 9 U.S.C. §1 (2018), see note 3 supra. In Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 149 L. Ed. 2d 234 (2001), the Court explained that the exclusion was likely due to Congress's plan to implement more specific legislation for those engaged in transportation. Neither party argues that there is any other, more specific federal law which would be dispositive of this cause. 6 The United States Supreme Court in Southwest Airline Co. v. Saxon, 596 U.S. 450, 142 S. Ct. 1783, 213 L. Ed. 2d 27 (2022), discussed the conflict as being between the 7th Circuit decision in Saxon v. Southwest Airlines Co., 993 F.3d 492 (7th Cir. 2021), and the 5th Circuit's case of Eastus v. ISS Facility Services, Inc., 960 F.3d 207 (5th Cir. 2020). Other Courts have grappled with the issue as well. See, e.g., Capriole v. Uber Technologies, Inc., 7 F. 4th 854 (9th Cir. 2021) [Arbitration exemption did not apply to Uber drivers.]; and Bean v. Es Partners, Inc., 533 F. SupP.3d 1226 (S.D. Fl. 2021) [Arbitration exclusion did not apply to courier route drivers delivering prescription medications.]. 7 Domino's Pizza, LLC., v. Carmona, 143 S. Ct. 361, 214 L. Ed. 2d 167 (2022) provides: On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Ninth Circuit for further consideration of Southwest Airlines Co. v. Saxon, 596 U.S. __, 142 S. Ct. 1783, 213 L. Ed. 2d 27 (2022). 8 Saxon, 596 U.S. at 456. 9 Saxon, 596 U.S. at 458-49. The Court went on to distinguish two previous cases as being too far removed from interstate commerce. The first, Gulf Oil Corp. v. Copp Paving Co. Inc., 419 U.S. 186, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974), involved an asphalt making firm who made intrastate sales of asphalt. The Court said even though the asphalt was later used to make interstate highways, there was only a perceptibility connected to instrumentalities of interstate commerce and that was not enough. The second was United States v. American Building Maintenance Industries, 422 U.S. 271, 95 S. Ct. 2150, 45 L. Ed. 2d 177 (1975) wherein the Court held that simply supplying localized janitorial services to a corporation engaged in interstate commerce did not satisfy the "in commerce" requirement. 10 Domino's Pizza, LLC., v. Carmona, __ S.Ct. __, 2024 WL 1706016 (2024). 11 The United States Supreme Court does not address preemption in Bissonnette v. LePage Bakeries Park St., LLC., 601 U.S. ___, 144 S. Ct. 905, 913 (2024), and expressly states that it has no opinion on any alternative grounds in favor of arbitration raised below. In footnote 2, the Court also stated: "The Second Circuit did not address whether Bissonnette and Wojnarowski qualify as transportation workers based on the work that they perform, or whether they are 'engaged in ... interstate commerce' even though they do not drive across state lines. We do not decide those issues." In the Second Circuit's opinion in Bissonnette v. LePage Bakeries Park St., LLC., 49 F.4th 655, 659 (2nd Cir. 0222), the court discusses, but does not decide, whether Connecticut law allows such an arbitration. It does, however, recognize that "multiple" courts lean towards rejecting the proposition that state arbitration law is preempted when a plaintiff is excluded from the FAA. 12 Page 3 of the Mutual Agreement to Individually Arbitrate Disputes, Ex. 4, Defendants' Motion to Compel Arbitration and Stay Plaintiffs' Claims, provides in pertinent part: Applicable Law and Effect of Decision. Interpretation and Enforcement of the Agreement: The Federal Arbitration Act ("FAA") and federal common law applicable to arbitration shall govern the interpretation and enforcement of this Agreement. If, for any reason, the FAA or federal common law is found not to apply to this Agreement (or its agreement to arbitrate), then applicable state law shall govern. 13 Title 85A O.S. 2021 §1 provides: Sections 1 through 106 and 150 through 168 of this act shall be known and may be cited as the "Administrative Workers' Compensation Act". The provisions of the Administrative Workers' Compensation Act shall be strictly construed. This statute has remained unchanged since its enactment in 2013. 14 Title 85A O.S. Supp. 2013 §7 provided in pertinent part: A. An employer may not discriminate or retaliate against an employee when the employee has in good faith: 1. Filed a claim under this act;2. Retained a lawyer for representation regarding a claim under this act;3. Instituted or caused to be instituted any proceeding under the provisions of this act; or4. Testified or is about to testify in any proceeding under the provisions of this act. . . B. The Commission shall have exclusive jurisdiction to hear and decide claims based on subsection A of this section. . . . H. The remedies provided for in this section shall be exclusive with respect to any claim arising out of the conduct described in subsection A of this section. (Emphasis supplied.) 15 Title 85A O.S. 2021 §5 provides in pertinent part: A. The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. . . . 16 Title 85A O.S. 2021 §1, see note 11, supra. 17 Title 12 O.S. 2021 Ch. 38B §1851 provides: Sections 1 through 31 of this act shall be known and may be cited as the "Uniform Arbitration Act". Title 12 O.S. 2021 Ch. 38B §1854(c) provides: C. Beginning January 1, 2006, the Uniform Arbitration Act governs an agreement to arbitrate whenever made. 18 Bruner v. Timberlane Manor Limited Partnership, 2006 OK 90, ¶23, 155 P.3d 16. See, Voss v. City of Oklahoma City, 1980 OK 148, 618 P.2d 925; Rollings v. Thermodyne Indust. Inc., 1996 OK 97, 818 P.2d 889. 19 Title 63 O.S. 2001 §1-1939 provided in pertinent part: A. The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident. Also, any state employee that aids, abets, assists, or conspires with an owner or licensee to perform an act that causes injury to a resident shall be individually liable. B. A resident may maintain an action under this act for any other type of relief, including injunctive and declaratory relief, permitted by law. C. Any damages recoverable under this section, including minimum damages as provided by this section, may be recovered in any action which a court may authorize to be brought as a class action. The remedies provided in this section, are in addition to and cumulative with any other legal remedies available to a resident. Exhaustion of any available administrative remedies shall not be required prior to commencement of suit hereunder. D. Any waiver by a resident or his legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect. E. Any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect. . . . KUEHN, J., CONCURRING IN PART AND DISSENTING IN PART: ¶1 I concur with the Majority's analysis of the applicability of the Federal Arbitration Act to the present case. However, I believe the Majority errs in its determination that the provisions of the Administrative Workers' Compensation Act (AWCA) conflict with and control over those in the Oklahoma Uniform Arbitration Act (OUAA). I would interpret these statutes harmoniously, giving effect to the legislative intent behind both statutory schemes and binding Appellants to their arbitration agreement. For the reasons explained below, I concur to Part I of the Majority's opinion, and dissent to Part II. I. A district court retains jurisdiction over claims submitted to arbitration pursuant to an agreement by the parties, so the OUAA and Title 85A, Section 7 are not in conflict. ¶2 The Majority finds that the Legislature's grant of "exclusive jurisdiction" to the district courts in 85A O.S. § 7 precludes arbitration of any claims arising under that section. In support of this conclusion, it points primarily to 85A O.S. § 7(B), (H). These statutory provisions grant district courts "exclusive jurisdiction" over claims against an employer for retaliatory action taken against an employee for participating in a workers' compensation claim and circumscribe "the remedies" available. Id. The Majority reads these provisions to mean that binding arbitration of claims arising under § 7 is statutorily prohibited -- reasoning that enforcing an agreement between the parties to submit such claims to arbitration deprives the district court of its exclusive jurisdiction. This is emphatically not the case. ¶3 This Court has long recognized that "jurisdiction" is comprised of three basic elements: 1) jurisdiction over the parties, 2) jurisdiction over the subject matter of the controversy, and 3) the power to render judgment in the case. See, e.g. Chivers v. Bd. of Comm'rs, 1916 OK 1001, ¶ 10, 161 P. 822, 824. Therefore, for arbitration proceedings to deprive a court of its "exclusive jurisdiction" to hear a case or controversy, the act of submitting the matter to arbitration must deprive the district court of one of these three elements of jurisdiction. Presumably, the Majority reasons that submitting a controversy to binding arbitration proceedings deprives the court of its power to render judgment. But this conclusion conflicts with the explicit language provided by the OUAA. ¶4 The OUAA provides that "an agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract." 12 O.S. § 1857(A). The OUAA also explicitly grants district courts "exclusive jurisdiction ... to enter judgment on an award under the Uniform Arbitration Act." 12 O.S. § 1877(B) (emphasis added). Throughout the process, the district court retains the power to intervene in the arbitration proceedings -- although this power is circumscribed by the OUAA. A party to arbitration may move the court to modify or vacate an arbitrator's award. 12 O.S. §§ 1874 -- 75. Upon completion of the arbitration process, it is the district court and not the arbitrator who enters the final judgment which makes the arbitration award legally enforceable. 12 O.S. § 1876. ¶5 Although parties to arbitration may decide to abide by an arbitration award on their own without need for external enforcement, where external enforcement is necessary, it is only obtainable by exercising the power of the district court. See id. The district court can only exercise such power over parties to arbitration, because it retains 1) power over the parties, 2) power over the subject matter, and 3) the power to render judgment in the case throughout the arbitration proceedings. The fact that the court's power in such cases is limited by the provisions of the OUAA does not deprive the court of jurisdiction. Indeed, courts are routinely limited by statutes when exercising jurisdiction in any given case. Submitting a claim under 85A O.S. § 7 to arbitration does not deprive the district court of its "exclusive jurisdiction" under that statute. Thus, there is no conflict between § 7 and the OUAA that justifies the Court's decision to render the OUAA inapplicable to § 7 claims. II. The Bruner decision is readily distinguishable from the present case, and its rationale is inapplicable here. ¶6 The Majority relies on Bruner v. Timberlane Manor Ltd. P'ship, 2006 OK 90, 155 P.3d 16, to support its conclusion that granting a district court "exclusive jurisdiction" over a certain set of claims acts as a bar to enforcement of an arbitration agreement between the parties which would subject such claims to arbitration. But this reliance is misplaced. ¶7 The Bruner case involved litigation between a nursing home and the daughter of a deceased resident. Id. at ¶¶ 2-3. As answer to the daughter's lawsuit for the wrongful death of her mother, the nursing home sought enforcement of the binding arbitration agreement between the parties. In that case, the Court found that OUAA's mandate to enforce arbitration agreements directly conflicted with provisions of the Oklahoma Nursing Home Act and declined to enforce the arbitration agreement. ¶8 Specifically, 63 O.S. 2001, § 1-1939(D) provided that "[a]ny waiver by a resident or his legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect." (emphasis added). Furthermore, §1-1939(E) provided that "[a]ny party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect." (emphasis added). Taking these subsections together, the Bruner Court found that this language was "a clear rejection of arbitration agreements between nursing homes and their residents." 2006 OK 90, ¶ 24. This conclusion logically follows the language used in § 1-1939; an arbitration agreement, after all, is essentially a waiver of the right to jury trial by both parties, and such waivers are rendered "null and void, and without legal force or effect" by the clear language used in the statute. ¶9 By contrast, the statutory language at issue here does not evince any clear legislative intent to preclude enforcement of arbitration agreements for claims brought under 85A O.S. § 7. Granting district courts "exclusive jurisdiction" over a category of claims is a far cry from making "any waiver of the right to trial by jury ... null and void, and without legal force or effect." The latter statutory language is a forceful expression of the Legislature's intent to preserve the right to jury trial for claims brought under that statute -- and the former simply is not. ¶10 In enacting 63 O.S. 2001, § 1-1939, the Legislature used clear and unambiguous language to protect residents of nursing homes, a vulnerable population, from being forced to arbitrate claims. The Majority now wishes to extend an identical protection to a new population, injured workers facing retaliation from their employer for considering or filing a workers' compensation claim. While this policy preference may be reasonable, it is not this Court's place to substitute our own policy preferences for those enacted by the Legislature. Injured employees may deserve legal protection from retaliation for filing workers' compensation claims, but it is the Legislature's responsibility, and not this Court's, to determine the form and scope of that protection. Should the Legislature wish to remove claims brought under 85A O.S. § 7 from binding arbitration agreements, it has the power to do so by clearly and unambiguously stating such intention, and the statutory language discussed in Bruner provides an excellent example of how to achieve such a result. III. The use of the word "exclusive" in Title 85A, Section 7, expresses the Legislature's intention that claims arising under that section not go through the ordinary workers' compensation claim process. ¶11 When interpreting statutes in apparent conflict, our primary goal is to give effect to the intention of the Legislature. E.g. Raymond v. Taylor, 2017 OK 80, ¶ 12, 412 P.3d 1141, 1145. In determining the Legislature's intent in enacting a given statutory provision, "this Court will not limit consideration to one word or phrase, but will consider the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying the intent." Am. Airlines, Inc. v. Okla. Tax Comm'n, 2014 OK 95, ¶ 33, 341 P.3d 56, 65 (citing YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 6, 136 P.3d 656, 658). "Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each." Keating v. Edmondson, 2001 OK 110, ¶ 8, 37 P.3d 882, 886 (emphasis added). Our rules of statutory construction are only to be employed "where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict...." Id. (emphasis added). ¶12 In the present case, the Majority perceives a conflict between the OUAA's directive to enforce arbitration agreements and the provisions of 85A O.S. § 7 granting the district courts "exclusive jurisdiction" over § 7 claims, and providing that the remedies therein are "exclusive with respect to any claim" brought under that section. To remedy this conflict, the Majority employs the rule of statutory construction that "where two statutes address the same subject, one specific and one general, the specific statute will govern over the general." Bruner, 2006 OK 90, ¶ 25, 155 P.3d 16, 25 (citing Trimble v. City of Moore, 1991 OK 97, 818 P.2d 889; Hall v. Globe Life Accident Ins. Co. of Oklahoma, 1999 OK 89, 998 P.2d 603). However, because the statutes at issue can be interpreted harmoniously, I do not believe it is appropriate to employ the rules of statutory interpretation to give effect to one statute at the expense of the other. But this leaves one question in need of resolution, as "[a] statute will be given a construction, if possible, which renders every word operative, rather than one which makes some words idle and meaningless." Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 16, 184 P.3d 518, 525. So if the word "exclusive" as used in 85A O.S. § 7 does not have the legal effect that the Majority would grant it, what is its legal effect which renders it operative? ¶13 The word "exclusive" is used twice in the text of 85A O.S. § 7 -- once in subsection (B), and once in subsection (H). The legislative intent behind the inclusion of that word in those passages is readily discernable from examining the provisions' place within the whole of Title 85A, and the overall purpose of the entire statutory scheme. ¶14 Title 85A, Section 7(B) provides that "the district court shall have exclusive jurisdiction to hear and decide claims based on this section." The use of the word "exclusive" in this section can be understood as the Legislature clarifying that the district court's jurisdiction over § 7 claims is exclusive of any jurisdiction that the Workers' Compensation Commission may have over the compensation action which is the basis of the employer's retaliatory act. Title 85A concerns itself primarily with the resolution of workers' compensation claims, and primarily matters within the jurisdiction of the Workers' Compensation Commission and Administrative Law Judges. By using the word "exclusive," the Legislature sought to make clear that § 7 claims are 1) different than other types of claims arising under Title 85A, and 2) that they should be heard in a different forum than other Title 85A claims. The word "exclusive" then, serves not to preclude parties from resolving controversies under § 7 through alternatives to litigation, but to clarify that if litigation takes place, the district courts have jurisdiction at the exclusion of other courts, and particularly at the exclusion of the Workers' Compensation Commission and Administrative Law Judges.1 ¶15 Title 85A, Section 7(H), meanwhile, states that "the remedies provided for in this section shall be exclusive with respect to any claim arising..." under § 7. (emphasis added). The Majority reads this provision, at least in part, as referring to Section 7(B), and reinforcing the exclusivity of the district court's jurisdiction over § 7 claims. But there is a far simpler explanation. Section 7(C) is the portion of the statute that lays out the remedies available to an employee facing retaliation from their employer for filing a workers' compensation claim. Specifically, it states that an employer violating § 7 can be held liable "for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation." Section 7(C) also specifies that exemplary or punitive damage awards under this section cannot exceed one hundred thousand dollars ($100,000). The legal effect of the word "exclusive" in this context then, is to clarify that Section 7(C) is an all-encompassing statement of the damages available to an injured employee facing retaliation by their employer -- actual damages, and punitive damage not to exceed one hundred thousand dollars ($100,000). To read this section as a legislative mandate forbidding the resolution of a § 7 claim by any means other than "jury trial in a district court" would be a vast judicial expansion of the policies articulated in § 7 by the Legislature. CONCLUSION ¶16 Today, the Majority interprets the word "exclusive" as used in 85A O.S. § 7 to render the directives of the OUAA null and void in cases of employer retaliation against an employee filing or considering a worker's compensation claim. Because the OUAA and 85A O.S. § 7 can be interpreted harmoniously to give full force and effect to each, I cannot concur with the Court's decision to give 85A O.S. § 7 preferential treatment at the expense of 12 O.S. § 1857. Therefore, I dissent from Part II of the Majority's opinion and its conclusion. I would uphold the decisions of the trial court and the Court of Civil Appeals and remand this case to the trial court with orders that the arbitration agreement be enforced as to Appellants' § 7 claim unless "a ground that exists at law or in equity for the revocation of a contract" justifies non-enforcement of the parties' agreement. FOOTNOTES 1 At least one other jurisdiction has adopted this definition of "exclusive jurisdiction." Keehan Tenn. Inv., LLC v. Praetorium Secured Fund I, L.P., 71 N.E.3d 325, 330 (Ohio Ct. App. 2016).

55c47a96-d4c2-409e-b5ad-f7246d0f653c

Randle v. City of Tulsa

oklahoma

Oklahoma Supreme Court

RANDLE v. CITY OF TULSA2024 OK 40Case Number: 121502Decided: 06/12/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. LESSIE BENNINGFIELD RANDLE, VIOLA FLETCHER, and MURIEL WATSON, as Personal Representative for the ESTATE OF HUGHES VAN ELLIS, SR., Plaintiffs/Appellants, v.CITY OF TULSA, a municipal corporation, TULSA REGIONAL CHAMBER, a domestic not-for-profit corporation, BOARD OF COUNTY COMMISSIONERS FOR TULSA COUNTY, OKLAHOMA; VIC REGALADO, in his official capacity as Sheriff of Tulsa County; OKLAHOMA MILITARY DEPARTMENT, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY HONORABLE CAROLINE WALL, DISTRICT JUDGE ¶0 Plaintiffs, survivors of the Tulsa Race Massacre, brought suit against Defendants seeking abatement of the public nuisance caused by Defendants' unreasonable, unwarranted, and/or unlawful acts and omissions that began with the Tulsa Race Massacre of 1921 and continue to this day. Plaintiffs also sought recovery for unjust enrichment for Defendants' exploitation of the Massacre for their own economic and political gain. The district court granted Defendants' motion to dismiss finding Plaintiffs' Petition failed to state a justiciable public nuisance claim and failed to allege a legally cognizable abatement remedy and dismissed Plaintiffs' unjust enrichment claim for failure to cure a defective pleading. Plaintiffs appealed, asserting the district court erred in dismissing both claims. We retained this matter on Plaintiffs' motion and hold that Plaintiffs' grievances do not fall within the scope of our state's public nuisance statute and Plaintiffs' allegations do not support a claim for the equitable doctrine of unjust enrichment. MATTER PREVIOUSLY RETAINED FOR DISPOSITION;TRIAL COURT AFFIRMED. Damario Solomon-Simmons, and Jourdan Johnson, SolomonSimmonsLaw, Tulsa, Oklahoma, Jana L. Knott, Bass Law, Oklahoma City, Oklahoma, Lashandra Peoples-Johnson and Cordal Cephas, Johnson Cephas Law, PLLC, Tulsa, Oklahoma, J. Spencer Bryan and Steven J. Terrill, Bryan & Terrill Law, PLLC, Edmond, Oklahoma, Erika L. Simonson, Randall T. Adams, Michael E. Swartz, McKenzie E. Haynes, and Sara E. Solfanelli, Schulte Roth & Zabel, LLP, New York, New York, Maynard M. Henry, Sr., Maynard M. Henry, Sr., Attorney at Law, P.C., Fairfax, Virginia, Eric J. Miller, Los Angeles, California, for Plaintiffs/Appellants. Garry M. Gaskins, II, Solicitor General, Will Flanagan II, Assistant Solicitor General, Kevin L. McClure, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Defendant/Appellee Oklahoma Military Department. Keith A. Wilkes, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Oklahoma, for Defendants/Appellees Board of County Commissioners for Tulsa County and Vic Regalado, in his official capacity as Sheriff of Tulsa County. Kristina L. Gray, R. Lawson Vaughn, and T. Michelle McGrew, Attorney's for the City of Tulsa, Tulsa, Oklahoma, for Defendant/Appellee City of Tulsa. John H. Tucker, Colin H. Tucker, Kerry R. Lewis, and Austin T. Jackson, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, Oklahoma, for Defendant/Appellee Tulsa Regional Chamber. ROWE, V.C.J.: ¶1 Unlike most cases that come before this Court, the tragedy that forms the basis of the present appeal is acknowledged and memorialized, at least in part, in Oklahoma law. In 1997, the Oklahoma Legislature passed House Joint Resolution 1035, which established the 1921 Tulsa Race Riot Commission ("Commission") and tasked the Commission with developing the historical record of the racial violence that transpired in the Greenwood community of Tulsa, Oklahoma, between May 31 and June 1, 1921. We now know these events as the Tulsa Race Massacre ("Massacre"). ¶2 When the Commission completed its final report in 2001,1 a portion of its findings were inscribed into Oklahoma law.2 The Commission found that there was a "breakdown of the rule of law in Tulsa on May 31-June 1, 1921" after a white mob assembled in the city, threatening the life of Dick Rowland, an African-American who was accused of raping a white woman. 74 O.S. § 8000.1(2). The Commission found "strong evidence" that: [S]ome local municipal and county officials failed to take actions to calm or contain the situation once violence erupted and, in some cases, became participants in the subsequent violence which took place on May 31 and June 1, 1921, and even deputized and armed many whites who were part of a mob that killed, looted, and burned down the Greenwood area . . . . Id. The destruction inflicted upon the Greenwood community by the mob was staggering, including the killing of between 100 and 300 people, predominantly African Americans, and the destruction of more than 1,200 homes, schools, churches, and businesses. 74 O.S. § 8000.1(3). ¶3 Even after the initial violence subsided, local officials engaged in actions that exacerbated the harm. State and local officials participated in the mass arrests and detention of Greenwood residents, and black detainees could only be released upon the application of a white person. When Greenwood residents attempted to rebuild their community, they were met with frustration. In one notable example, local officials "attempted to block the rebuilding of the Greenwood community by amending the Tulsa building code to require the use of fire-proof material in rebuilding the area thereby making the costs prohibitively expensive . . . ." 74 O.S. § 8000.1(3). BACKGROUND ¶4 On September 1, 2020, Plaintiffs3 in their original Petition asserted claims of public nuisance and unjust enrichment. In their public nuisance claim, Plaintiffs alleged that as a result of the Massacre and the unlawful actions of Defendants both during and after, Plaintiffs "continue to face racially disparate treatment and City-created barriers to basic human needs, including jobs, financial security, education, housing, justice, and health, that annoy, injure, or endanger their comfort, repose, health, or safety and render them insecure in life, or in the use of their property."4 In their unjust enrichment claim, Plaintiffs alleged that Defendants appropriated the name "Black Wall Street," a moniker for the Greenwood neighborhood, for use in marketing efforts to promote the City of Tulsa as a tourist attraction, without returning any of those benefits to members of the community. ¶5 Defendants5 sought dismissal on several grounds including, inter alia, failure to comply with the Governmental Tort Claims Act, failure to state a cognizable public nuisance claim, equitable defenses, lack of standing, and constitutional issues with the requested abatement remedies. The motions to dismiss prompted Plaintiffs to file the First Amended Petition. Both the Petition and the First Amended Petition sought a broad set of remedies, including: (1) declaratory judgments regarding the role of public officials in the Massacre and the lasting harm it created; (2) injunctive relief preventing Defendants from obtaining any further financial benefit from the Massacre; (3) an accounting of any financial benefits received already; and (4) a number of financial and social remedies to abate the alleged ongoing public nuisance. Defendants renewed their motions to dismiss Plaintiffs' First Amended Petition. ¶6 While the Motions to Dismiss were under consideration, we issued our decision in State ex rel. Att'y Gen. of Oklahoma v. Johnson & Johnson, 2021 OK 54, 499 P.3d 719, holding that an opioid manufacturer's actions in manufacturing, marketing, and selling of prescription opioids did not constitute a public nuisance. In response to the Johnson & Johnson decision, Plaintiffs submitted a Notice of Supplemental Authority and Supplemental Memorandum of Law addressing the decision's impact on their public nuisance claim. ¶7 As to the public nuisance claim, the District Court found that only those Plaintiffs who were survivors of the Massacre, i.e., Lessie Benningfield Randle, Viola Fletcher, and Hughes Van Ellis, Sr., had standing to sue.6 The District Court dismissed Plaintiffs' "ongoing" public nuisance claim, which sought relief for the unlawful acts of Defendants in the decades following the massacre. Specifically, the District Court determined that Plaintiffs' claim of an ongoing public nuisance implicated political questions that were not within its purview and that Plaintiffs' requested relief violated the separation of powers doctrine. The District Court also dismissed with prejudice the public nuisance claim against then-named Defendants, Tulsa Development Authority and Tulsa Metropolitan Area Planning Commission, because neither body existed at the time of the Massacre. The District Court also dismissed the only remaining public nuisance claim without prejudice, that of the survivor Plaintiffs stemming from the Massacre itself, finding that Plaintiffs had failed to state a cognizable abatement remedy--but granted Plaintiffs leave to amend their petition. ¶8 In its ruling on Defendants' motions to dismiss Plaintiffs' unjust enrichment claim, the District Court noted that the parties stipulated there were curable defects with the unjust enrichment claim, and pursuant to the parties' joint request, the District Court dismissed the unjust enrichment claim without prejudice and with leave to amend. ¶9 In their Second Amended Petition, Plaintiffs revised their proposed abatement remedy as to their public nuisance claim and made the stipulated changes to their unjust enrichment claim. Defendants renewed their motions to dismiss on largely the same grounds. After the District Court held a hearing on the renewed motions to dismiss, it incorporated its previous findings and dismissed the Second Amended Petition with prejudice. The District Court provided the following reasoning in its dismissal order: The Court determines Plaintiffs' Second Amended Petition fails to state a justiciable public nuisance claim under Oklahoma law. Plaintiffs' Second Amended Petition fails to allege a legally cognizable abatement remedy. Plaintiffs' Second Amended Petition fails to cure the defect in pleading which the court found to exist and liberally granted leave to amend pursuant to 12 O.S. 2012 §G. Plaintiffs filed their Petition in Error and accompanying Motion to Retain with this Court. We retained the matter for disposition and held oral argument en banc. STANDARD OF REVIEW ¶10 We review a district court's order granting a motion to dismiss under a de novo standard. Dani v. Miller, 2016 OK 35, ¶ 10, 374 P.3d 779, 785. Motions to dismiss are intended to test the law that governs a claim, rather than the underlying facts. Id. ¶ 10, 374 P.3d at 785-86. Thus, when evaluating whether a petition was properly dismissed, we take as true all the allegations within the petition, as well as any reasonable inferences that can be drawn therefrom. Id. Motions to dismiss are generally disfavored and should only be granted when there is no set of facts that can be drawn from the petition that would warrant relief. Id. ¶¶ 10-11, 374 P.3d at 785-86. ¶11 When reviewing a dismissal for failure to state a claim upon which relief can be granted pursuant to 12 O.S. § 2012(B)(6) we must determine whether the petition is legally sufficient. Ind. Nat'l Bank v. State Dep't of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. "A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." Fraizer v. Bryan Mem'l Hosp. Auth., 1989 OK 73, ¶ 13, 775 P.2d 281, 287. We adhere to the standard that "[t]he purpose of a motion to dismiss is to test the law that governs the claim, not the facts. " MeGee v. El Patio, LLC, 2023 OK 14, ¶ 5, 524 P.3d 1283, 1285. Thus, we "must take as true all of the allegations in the challenged pleading together with all reasonable inferences that can be drawn from them." Id. We will only find dismissal appropriate if "there is no cognizable legal theory to support the claim or there are insufficient facts under a cognizable legal theory." Id. ANALYSIS ¶12 On appeal, Plaintiffs' propositions of error can be summarized as two primary contentions: (1) the District Court erred in dismissing their public nuisance claim for failing to state a legally cognizable abatement remedy; and (2) the District Court erred in dismissing their unjust enrichment claim despite a purported stipulation that the defects in the claim were curable.7 I. Plaintiffs' Grievances Do Not Fall Within the Scope of Our State's Public Nuisance Statute. ¶13 Plaintiffs' primary contention on appeal regarding the public nuisance claim is that the District Court functionally imposed a heightened pleading standard by requiring Plaintiffs to identify a "legally cognizable abatement remedy."8 Specifically, Plaintiffs note that Oklahoma is a notice pleading jurisdiction, and under a notice pleading regime, they are not required to identify a theory of recovery. Defendants counter that Plaintiffs must show there is some justiciable remedy in order to adequately state a claim for public nuisance. Defendants also argue that even if Plaintiffs have adequately stated a claim, this Court can and should dismiss the public nuisance claim on other grounds. ¶14 Oklahoma law states that a nuisance exists when the offending party unlawfully does an act, or omits to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or Second. Offends decency; or Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or Fourth. In any way renders other persons insecure in life, or in the use of property, provided, this section shall not apply to preexisting agricultural activities. 50 O.S. §1. A nuisance is public when it "affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal." 50 O.S. § 2. ¶15 In Johnson & Johnson we explained in applying Oklahoma's public nuisance statute that over the past one-hundred years we have limited public nuisance liability to defendants "(1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participating in an offensive activity that rendered the property uninhabitable." State ex rel. Att'y Gen. of Okla. v. Johnson & Johnson, 2021 OK 54, ¶ 18, 499 P.3d 719, 724. For instance, in Crushed Stone Co. v. Moore, 1962 OK 65, 369 P.2d 811, we recognized that the operation of a limestone rock quarry constituted a public nuisance, due to the concussive explosions, projectile debris, and dust that filled the air and settled on nearby properties. Id. ¶¶ 5, 12, 369 P.2d at 813, 815-16. Likewise, in State ex rel. Field v. Hess, 1975 OK 123, 540 P.2d 1165, we found that the exhibition, distribution, and sale of obscene material at an adult bookstore in violation of Oklahoma law constituted a public nuisance. Id. ¶ 16, 540 P.2d at 1170-71. ¶16 Like Johnson & Johnson, the present matter is distinguishable from traditional nuisance cases like Crushed Stone and Hess. In Johnson & Johnson, we were asked to address whether the conduct of an opioid manufacturer in marketing and selling prescription opioids constituted a public nuisance. Johnson & Johnson, ¶ 8, 499 P.3d at 723. We acknowledged that the opioid manufacturer's conduct annoyed, injured and endangered the comfort, repose, health, and safety of the public by contributing to the opioid epidemic. Id. ¶ 19, 499 P.3d at 725. Nevertheless, we declined to expand public nuisance liability to cover the opioid manufacturer's conduct because it was not criminal and did not involve property-based conflict. Id. "Applying the nuisance statutes to lawful products as the State requests would create unlimited and unprincipled liability for product manufacturers; this is why our Court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products." Id. ¶17 Today, the Court is asked to expand its public nuisance liability once more to include the lingering negative economic and social consequences stemming from the unjust, violent, and tragic moments of our history. The legislatively-authorized remedies for a public nuisance are: (1) indictment or information; (2) a civil action; and (3) abatement.9 Applying these remedies to Plaintiffs' claim, any individuals who could be indicted or held criminally liable for the Massacre have long since passed away. Plaintiffs do not point to any physical injury to property in Greenwood rendering it uninhabitable that could be resolved by way of injunction or other civil remedy. And as the District Court noted, Plaintiffs' proposed abatement remedy does not constitute abatement but rather a series of affirmative policies directed at offsetting or minimizing the aforementioned inequities. The inability of legislatively-authorized public nuisance remedies to redress the harms flowing from the Massacre highlights that Plaintiffs' grievances do not fall within the scope of our State's public nuisance statute. ¶18 Plaintiffs seek abatement to remedy "the blight to property caused by Defendant-Appellees that began with the Massacre and persists to this day."10 Plaintiffs do not plead any current physical injury to property or allege that any property is currently uninhabitable.11 Rather, Plaintiffs' public nuisance claim is predicated upon "the blight to property caused by Defendant-Appellees that began with the Massacre and persists to this day."12 ¶19 Accepting as true that the Massacre is a continuing blight within all property in the Greenwood community--and that the pall of the Massacre continues to envelop the Greenwood community over one-hundred years later--Plaintiffs' claim does not present a conflict resolvable by way of abatement. And even accepting as true Plaintiffs' claim that the lingering economic and social consequences of the Massacre still, to some extent, endanger the comfort and repose of the Greenwood and North Tulsa communities, those lingering consequences over one-hundred years later, standing alone, do not constitute a public nuisance, as that term has been construed by this Court. The continuing blight alleged within the Greenwood community born out of the Massacre implicates generational-societal inequities that can only be resolved by policymakers--not the courts. ¶20 Today's holding is consistent with our recent public nuisance jurisprudence: expanding public nuisance liability to include lingering social inequities from historical tragedies and injustices runs the risk of creating a new "unlimited and unprincipled"13 form of liability wherein both State and non-State actors could be held liable for their predecessors' wrongdoing, in which current actors played no part. To hold otherwise would place Oklahoma courts in the unorthodox position of fashioning remedies for these claims or venturing into the realm of outright policymaking--both of which we decline to do. As we said in Johnson & Johnson, "[t]his Court defers the policy-making to the legislative and executive branches . . . ." Johnson & Johnson, ¶ 39, 449 P.3d at 731. ¶21 Today we hold that relief is not possible under any set of facts that could be established consistent with Plaintiffs' allegations. "When a trial court is considering [its] ruling on a § 2012(B)(6) motion [it] should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations." Ind. Nat'l Bank, 1994 OK 98, ¶ 4, 880 P.2d at 375-76. Plaintiffs' grievance with the social and economic inequities created by the Tulsa Race Massacre is legitimate and worthy of merit. However, the law does not permit us to extend the scope of our public nuisance doctrine beyond what the Legislature has authorized to afford Plaintiffs the justice they are seeking. Accordingly, we affirm the District Court's dismissal of the public nuisance claim. II. The Record Reflects No Evidence of a Stipulation on Defendants' Behalf to Forego Further Motions to Dismiss. ¶22 With respect to their unjust enrichment claim, Plaintiffs allege that Defendants stipulated to the District Court that they would forego any further motions to dismiss the claim if Plaintiffs made certain amendments to the Second Amended Petition. Defendants argue that Plaintiffs mischaracterized the stipulation, specifically that there was never an agreement to forego further motions to dismiss. On review, we find no evidence of a stipulation on Defendants' behalf to forego further motions to dismiss the unjust enrichment claim. ¶23 During the hearing on Defendants' motions to dismiss, City of Tulsa noted that Plaintiffs' unjust enrichment claim sought damages for injuries that occurred beyond the two-year statute of limitations. Plaintiffs acknowledged on the record that it was not their intention to seek remedies for unjust enrichment beyond those permitted by the statute of limitations. When this issue was raised again at a subsequent hearing, the parties announced a plan to strike certain portions of the proposed remedy on the unjust enrichment claim that addressed injuries preceding the two-year statute of limitations. Specifically, counsel for Plaintiffs stated: Okay. So the parties have agreed with respect to page 69, Paragraph 10 of the Petition, that Plaintiffs will file a Second Amended Petition that strikes the subparagraphs A through N of that paragraph. And that will be the only purpose of the amendment. And then Defendants will rest on their existing Motions to Dismiss with respect to their legal arguments. And there won't be a new round of briefing related to the Second Amended Petition.14 ¶24 Thus, the stipulation on which Plaintiffs rely does not support their contention that Defendants agreed to forego any further motions to dismiss the unjust enrichment claim. Rather, the record reflects that Defendants intended to pursue a dismissal of the unjust enrichment claim, even if the stipulated defects were cured. Even so, Plaintiffs allege that the District Court was wrong to dismiss their unjust enrichment claim because it was sufficiently pled. Defendants counter with a number of purported legal deficiencies in Plaintiffs' unjust enrichment claim, including lack of standing and the availability of adequate remedies at law. ¶25 Based on the record before us, it is evident that the stipulation referenced by Plaintiffs did not entail an agreement with Defendants to forego further motions to dismiss. The record reflects that Defendants maintained their intention to pursue dismissal of the unjust enrichment claim, notwithstanding any stipulated amendments. Accordingly, we find no evidence of a stipulation on Defendants' behalf to forego further motions to dismiss the unjust enrichment claim. III. Plaintiffs' Allegations Do Not Support a Claim for the Equitable Doctrine of Unjust Enrichment. ¶26 Our jurisprudence has defined unjust enrichment as "a condition which results from the failure of a party to make restitution in circumstances where it is inequitable, i.e., the party has money in its hands that, in equity and good conscience, it should not be allowed to retain." Harvell v. Goodyear Tire & Rubber Co., 2006 OK 24, ¶ 18, 164 P.3d 1028, 1035. A claim for unjust enrichment is an equitable claim that arises when a plaintiff does not have an adequate remedy at law. Id. A claim for unjust enrichment requires an allegation of some active wrongdoing on the part of the person against whom recovery is sought such as fraud, abuse of confidence, or unconscionable conduct. Easterling v. Ferris, 1982 OK 99, ¶ 10, 651 P.2d 677, 680. We have explained that: [U]njust enrichment arises not only where an expenditure by one person adds to the property of another, but also where the expenditure saves the other from expense or loss. One is not unjustly enriched...by retaining benefits involuntarily acquired which law and equity give him absolutely without any obligation on his part to make restitution. City of Tulsa v. Bank of Okla., N.A., 2011 OK 83, ¶ 19, 280 P.3d 314, 319 (quoting McBride v. Bridges, 1950 OK 25, ¶ 8, 215 P.2d 830, 832). ¶27 Despite the elements of unjust enrichment being relatively broad, our early precedents limited its application to contractual and quasi-contractual relationships. Conkling's Estate v. Champlin, 1943 OK 282, ¶¶ 3-4, 141 P.2d 569, 570. We later clarified that the nature of an unjust enrichment claim primarily exists where an exchange or transaction occurs resulting in one party substantially and unjustly benefitting at the expense of another. French Energy, Inc. v. Alexander, 1991 OK 106, ¶ 14, 818 P.2d 1234, 1238. ¶28 In French Energy, Inc. v. Alexander, we addressed a claim for unjust enrichment by a purchaser of an oil and gas lease who purchased mineral interests at a judicial sale. Id. ¶ 1, 818 P.2d at 1235. Shortly after the sale, it was determined that the minerals subject to the lease were held by production from a prior lease, leading the purchaser to seek rescission of the lease and return of the price paid for the lease based on the equitable doctrines of mutual mistake and unjust enrichment. Id. ¶ 4, 818 P.2d at 1236. We noted the contract memorializing the sale purported to convey the right to explore for oil and gas, yet there was no such right to convey. Id. ¶ 14, 818 P.2d at 1238. Despite the lease conveying the right to explore for oil and gas, and there being no such right to convey, the sellers of the lease profited from the money the purchaser paid for the lease. Id. In granting purchaser's request that the contract be rescinded, we held: We refuse to allow one party to profit by the mistake of another where, as here, both parties can be returned to the position they were in before the transaction. In short, this case is a classic illustration of when, in accordance with general principles of common justice and equity, [the sellers] will be required to do what it is they promised. Since this is not possible in that the mineral rights are subject to a pre-existing lease, we order the contract be rescinded and [the purchaser's] money refunded. Id. ¶29 In the case before us, Plaintiffs outlined their unjust enrichment claim as follows: Plaintiffs and the residents of Greenwood and North Tulsa will reap no direct benefit from the "financial exploitation of their history and part in the Massacre, as in equity and good conscience they should";15 Defendants are profiting from promoting the Massacre they created "without ensuring that the community and those subjected to the nuisance they created were significantly represented in the decision-making group or are direct beneficiaries of those efforts";16 Defendants are responsible for destruction of the Historic Greenwood District, refuse to take responsibility or compensate for the Massacre, and it would be "grossly inequitable for the Defendants to retain the benefits they receive from marketing Black Wall Street rather than providing those benefits" to Plaintiffs;17 Defendants' retention of the unjust benefits at the expense of Plaintiffs are "exacerbating the pain and trauma of the Survivors and descendants of the Massacre";18 Defendants are using "the names and likeness of survivors and descendants of the Massacre victims to promote tourism and economic development that benefits Defendants while failing to compensate the victims of the Massacre."19 Plaintiffs reiterated at oral argument that they are seeking disgorgement and, through discovery, intend to prove that Defendants unjustly received monies by utilizing the survivors' stories to benefit themselves. ¶30 Plaintiffs' claim that Defendants' fundraising and community development efforts constitute active wrongdoing--considered alone--is insufficient to support a claim of unjust enrichment. Defendants' fundraising and community development efforts--absent fraud, abuse of confidence, or unconscionable conduct--do not amount to a claim of unjust enrichment. Easterling, ¶ 10, 651 P.2d at 680. Though Defendants' promotion of the Massacre as a fundraising effort may be considered unconscionable by Plaintiffs, neither law nor equity prevent Defendants from promoting the Massacre for historical purposes and community improvement. City of Tulsa, ¶ 19, 280 P.3d at 319. As unconscionable as the Massacre was, it is now part of our state's history, and is even codified as a Legislative finding in statute. 74 O.S. § 8000.1. Absent an allegation claiming that Defendants are falsely or fraudulently promising donors that Plaintiffs will share in or benefit from the proceeds of their fundraising efforts, Defendants' conduct itself is not legally unconscionable. Easterling, ¶ 10, 651 P.2d at 680. ¶31 Further, unlike the parties in French Energy, Inc. v. Alexander, there is no contractual or quasi-contractual relationship between Plaintiffs and Defendants, and no exchange or transaction has occurred between these parties. French Energy, Inc., ¶ 14, 818 P.2d at 1238. Defendants never purported to convey to Plaintiffs as direct beneficiaries any donations or profits from fundraising efforts--nor have Defendants held themselves out as acting in concert with Plaintiffs. ¶32 Plaintiffs reason that allowing Defendants to retain any revenue from fundraising would be grossly inequitable given their participation in the Massacre. Accepting as true that Defendants' retention of fundraising revenue is "grossly inequitable,"20 our jurisprudence requires that for Plaintiffs' to be entitled to any donations or profits, they must show a contractual or quasi-contractual relationship with Defendants or that Defendants perpetrated fraud, abuse of confidence, or acted unconscionably by guaranteeing donors that Plaintiffs would have a right to receive fundraising benefits. French Energy, Inc., ¶ 14, 818 P.2d at 1238; Easterling, ¶ 10, 651 P.2d at 680. ¶33 Plaintiffs do not claim there is a contractual relationship with Defendants, nor do they allege Defendants perpetrated fraud, abuse of confidence, or acted unconscionably by promising donors that Plaintiffs would benefit from donations or profits raised in the name of the Massacre. Having claimed neither of these elements--of which at least one is necessary to prevail under the doctrine of unjust enrichment--Plaintiffs' unjust enrichment claim fails as a matter of law. ¶34 Plaintiffs suggest the Defendants should be disgorged of their "ill-gotten gains" due to their participation in the Massacre and subsequent misappropriation of Plaintiffs' stories, names, and likenesses.21 Yet, the doctrine of unjust enrichment does not support an equitable redistribution of funds donated by third parties absent an allegation of fraud, abuse of confidence, or unconscionable conduct. ¶35 To apply our holding in French Energy, Inc. to the facts before us, Plaintiffs must show there is money in Defendants hands that was paid by or taken from Plaintiffs--not third-party donors. And though we take as true that Plaintiffs' pain and trauma has been exacerbated by the promotion of the Massacre for fundraising purposes,22 our jurisprudence does not allow the transfer of funds donated by third parties as a remedy for unjust enrichment absent an allegation of fraud, abuse of confidence, or unconscionable conduct. ¶36 At oral argument, Plaintiffs claimed that the lack of specificity in their allegations could be cured by permitting this matter to proceed to discovery. While Plaintiffs argue that the lack of specificity in their allegations could be rectified through the discovery process, we find today that the flaws in Plaintiffs' unjust enrichment claim extend beyond mere vagueness. Even if additional details were uncovered during discovery to bolster Plaintiffs' allegations, the fundamental shortcomings of their claim remain. Plaintiffs' unjust enrichment claim lacks any allegation that Defendants have perpetrated fraud, abuse of confidence, or have acted unconscionably; there is no claim of a contractual or quasi-contractual relationship between the parties; and there is no claim Plaintiffs were guaranteed a right to the money raised. Moreover, the assertion that Defendants engaged in--or are continuing to engage in--fundraising and community development efforts does not inherently support Plaintiffs' claim absent a clear demonstration of how these efforts should lawfully inure to their benefit. While discovery may shed light on certain factual aspects of the case, it cannot remedy the underlying deficiencies in Plaintiffs' legal argument, which ultimately fails to establish a viable claim for unjust enrichment. ¶37 Plaintiffs submit they intentionally did not make a claim under 12 O.S. § 1449.23 Rather, Plaintiffs assert that Defendants have been unjustly enriched through the exploitation of the harm caused to Plaintiffs.24 Plaintiffs' allegations do not support a claim for the unauthorized use of another person's right of publicity under 12 O.S. § 1449, as Plaintiffs do not point to any facts showing the Defendants used Plaintiffs' name or likeness. Without alleging any specific acts of Defendants' unauthorized use of Plaintiffs' names or likenesses, the pleadings are insufficient under the statutory claim of misappropriation of name and likeness to support Plaintiffs' claim.25 ¶38 Accepting Plaintiffs' allegations as true and applying general principles of common justice and equity to the facts before us, we decline to extend our unjust enrichment jurisprudence beyond its recognized bounds necessary to encompass Plaintiffs' claim. On review, we hold that Plaintiffs' allegations do not sufficiently support a claim for unjust enrichment, nor do the allegations sufficiently support a claim for the unauthorized use of name and likeness under 12 O.S. § 1449. Accordingly, we affirm the District Court's order dismissing Plaintiffs' unjust enrichment claim. CONCLUSION ¶39 We affirm the District Court's July 12, 2023 Final Order of Dismissal with Prejudice. With respect to their public nuisance claim, though Plaintiffs' grievances are legitimate, they do not fall within the scope of our State's public nuisance statute. We further hold that Plaintiffs' allegations do not sufficiently support a claim for unjust enrichment, nor do the allegations sufficiently support a claim for the unauthorized use of name and likeness under 12 O.S. § 1449. MATTER PREVIOUSLY RETAINED FOR DISPOSITION;TRIAL COURT AFFIRMED. Kane, C.J., Rowe, V.C.J., Kauger, Winchester, Combs, Gurich, Darby, and Kuehn, JJ., concur. Edmondson, J., concurs in part; dissents in part. FOOTNOTES 1 Plaintiffs incorporated the final report in its entirety in their pleadings. See Second Amended Petition at 2 n.3 (Sep. 2, 2022); see also Tulsa Race Riot: A Report by the Oklahoma Commission to Study the Tulsa Race Riot of 1921 (Feb. 28, 2001) [hereinafter Race Massacre Report], https://www.okhistory.org/research/forms/freport.pdf. 2 74 O.S.2021 § 8000.1. 3 At the time the original Petition was filed, there were nine named Plaintiffs, including Plaintiff Randle who remains a party to the present appeal. The other eight Plaintiffs included descendants and relatives of Tulsa Race Massacre victims and survivors, a church in the Greenwood neighborhood, and a non-profit organization comprised in part of descendants of Massacre survivors. Plaintiffs Fletcher and the Estate of Van Ellis, who remain named in the present appeal, were joined in the First Amended Petition. The other eight Plaintiffs who were named in the original Petition were later omitted from the Second Amended Petition. 4 Petition, ¶ 112. 5 At the time the original Petition was filed, there were seven named Defendants, including each of the Defendants presently named in the appeal, as well as the Tulsa Developmental Authority and the Tulsa Metropolitan Area Planning Commission. 6 Upon the Death of Hughes Van Ellis, Sr., Muriel Watson as Personal Representative was substituted for his estate. 7 In the Petition in Error, Plaintiffs noted that there is some dispute as to whether the Court's one-page July 7, 2023 Order or its July 12, 2023 Order constitute the final appealable order in this matter. We find that the July 12, 2023 Final Order of Dismissal with Prejudice is the Court's final appealable order. Plaintiffs' propositions of error are the same for both orders. 8 Plaintiffs' Brief in Chief, p. 21. 9 The remedies against a public nuisance are: 1. Indictment or information, or;2. A civil action, or;3. Abatement. 50 O.S. § 8. 10 Plaintiffs' Brief in Chief, p. 19. 11 Specifically, in relation to their abatement request, Plaintiffs pleaded as follows: 4. Following the Massacre, Defendants exacerbated the damage and suffering of the Greenwood residents. Defendants unlawfully detained thousands of Greenwood survivors and enacted unconstitutional laws that deprived Greenwood residents of the reasonable use of their property. From the period immediately after the Massacre until the present day, Defendants actively and unreasonably, unwarrantedly, and/or unlawfully thwarted the community's efforts to rebuild, neglecting the Greenwood and, predominately Black, North Tulsa communities. Instead, Defendants redirected public resources, which should have been used to abate the nuisance surrounding Greenwood, to benefit the overwhelmingly White parts of Tulsa. As a direct result, Plaintiffs and thousands of Black Greenwood and North Tulsa residents and their descendants have experienced and continue to experience insecurity in their lives and property and their sense of comfort, health, and safety has been destroyed. Plaintiffs therefore seek to abate this public nuisance that has continued to plague Tulsa's Black community for over one hundred years. . . . . 148. The public nuisance, as described above, is continuing, and has resulted in an obstruction of public rights, including, but not limited to, the right not to be placed in harm's way by Defendants' affirmative actions, the right to security in health, the right to access public roads and thoroughfares, and the right to enjoy reasonable use of property as guaranteed under the Oklahoma Constitution. Plaintiffs' Second Amended Petition, ¶¶ 4, 148. 12 Plaintiffs' Brief in Chief, p. 19. 13 State ex rel. Att'y Gen. of Okla. v. Johnson & Johnson, 2021 OK 54, ¶ 19, 499 P.3d 719, 725 ("Applying the nuisance statutes to lawful products as the State requests would create unlimited and unprincipled liability for product manufacturers; this is why our Court has never applied public nuisance law to the manufacturing, marketing, and selling of lawful products."). 14 ROA, Doc. 50, pp. 83-84 (emphasis added). 15 Plaintiffs' Omnibus Opposition to Defendants' Second Motions to Dismiss, p. 20. 16 Plaintiffs' Second Amended Petition, ¶ 153. 17 Plaintiffs' Second Amended Petition, ¶ 154. 18 Plaintiffs' Brief in Chief, p. 25; Plaintiffs' Second Amended Petition, ¶ 135. 19 Plaintiffs' Omnibus Opposition to Defendants' Second Motions to Dismiss, p. 20; Second Amended Petition, ¶¶ 134-140. 20 Plaintiffs' Second Amended Petition, ¶ 154. 21 Plaintiffs' Reply Brief, pp. 26-27. 22 Plaintiffs' Brief in Chief, p. 25. 23 12 O.S. § 1449(A) states, in relevant part: Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof, and any profits from the unauthorized use that are attributable to the use shall be taken into account in computing the actual damages. 24 Plaintiffs argue it was not their intention to bring a claim under 12 O.S. § 1449 "because this is not a misappropriation claim for the use of victims' and survivors' likeness, it is an unjust enrichment claim based on the acts of exploitation that Defendants have perpetrated and directly financially benefitted." Plaintiffs Omnibus Opposition to Defendants' Second Motions to Dismiss pp. 21-22. 25 "The meaning and effect of an instrument filed in court depends on its contents and substance rather than on form or title given it by the author." Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 759; "The nature of a pleading filed in a cause is determined by the subject matter thereof, and by the relief the Court is authorized to grant under it, and not by the title given it by the pleader." Amarex, Inc. v. Baker, 1982 OK 155, ¶ 18, 655 P.2d 1040, 1043.

0006d4dc-3646-4135-9cc6-b93798754eed

DRUMMOND v. OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD

oklahoma

Oklahoma Supreme Court

DRUMMOND v. OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD2024 OK 53Case Number: 121694Decided: 06/25/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GENTNER DRUMMOND, Attorney General for the State of Oklahoma, ex rel. STATE OF OKLAHOMA, Petitioner, v. OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD; ROBERT FRANKLIN, Chairman of the Oklahoma Statewide Virtual Charter School Board for the First Congressional District; WILLIAM PEARSON, Member of the Oklahoma Statewide Virtual Charter School Board for the Second Congressional District; NELLIE TAYLOE SANDERS, Member of the Oklahoma Statewide Virtual Charter School Board for the Third Congressional District; BRIAN BOBECK, Member of the Oklahoma Statewide Virtual Charter School Board for the Fourth Congressional District; SCOTT STRAWN, Member of the Oklahoma Statewide Virtual Charter School Board for the Fifth Congressional District, Respondents, and ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL, Intervenor. APPLICATION TO ASSUME ORIGINAL JURISDICTION FOR WRIT OF MANDAMUS AND DECLARATORY RELIEF ¶0 Petitioner brought this action seeking a writ of mandamus and declaratory relief that Respondents' contract with a religious charter school violates state and federal law and is unconstitutional. Original jurisdiction is assumed, and we grant the extraordinary and declaratory relief sought by Petitioner. ORIGINAL JURISDICTION ASSUMED; WRIT OF MANDAMUS AND DECLARATORY RELIEF GRANTED. Attorney General Gentner Drummond, Solicitor General Garry M. Gaskins, II, Assistant Solicitor General William Flanagan, Deputy General Counsel Brad Clark, and Assistant Solicitor General Kyle Peppler, Office of Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for Petitioner. Cheryl Plaxico, Plaxico Law Firm, PLLC, Oklahoma City, Oklahoma, for Respondents. Philip A. Sechler and J. Caleb Dalton, Alliance Defending Freedom, Lansdowne, Virginia, for Respondents. Mark Lippelmann, Alliance Defending Freedom, Scottsdale, Arizona, for Respondents. Michael H. McGinley, Steven A. Engel, and M. Scott Proctor, Dechert LLP, Washington, DC, for Intervenor. John A. Meiser and Meredith H. Kessler, Notre Dame Law School Religious Liberty Clinic, Notre Dame, Indiana, for Intervenor. Michael R. Perri and Socorro Adams Dooley, Perri Dunn, PLLC, Oklahoma City, Oklahoma, for Intervenor. Bryan Cleveland and Erin Smith, Oklahoma State Department of Education, Oklahoma City, Oklahoma for Amici Curiae Oklahoma State Department of Education and State Superintendent of Public Instruction Ryan Walters. Anthony J. Ferate and Andrew Lester, Spencer Fane, LLP, Oklahoma City, Oklahoma for Amici Curiae Oklahoma State Department of Education and State Superintendent of Public Instruction Ryan Walters. Hiram Sasser and Holly M. Randall, First Liberty Institute, Plano, Texas, for Amici Curiae Oklahoma State Department of Education and State Superintendent of Public Instruction Ryan Walters. Benjamin H. Odom, John H. Sparks, Michael W. Ridgeway, and Lisa M. Millington, Odom & Sparks, PLLC, Norman, Oklahoma, for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. Alex J. Luchenitser, Kenneth D. Upton, Jr., Kalli A. Joslin, Jenny Samuels, and Sarah Taitz, Americans United for Separation of Church and State, Washington, DC, for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. J. Douglas Mann, Tulsa, Oklahoma, for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. Robert Kim, Jessica Levin, and Wendy Lecker, Education Law Center, Newark, New Jersey, for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. Daniel Mach and Heather L. Weaver, American Civil Liberties Union Foundation, Washington, D.C., for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. Patrick Elliott, Freedom for Religion Foundation, Madison, Wisconsin, for Amici Curiae Taxpayers Melissa Abdo, Krystal Bonsall, Brenda Lené, Michelle Medley, Dr. Bruce Prescott, Rev. Dr. Mitch Randall, and Rev. Dr. Lori Walke. Randall J. Yates and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, Oklahoma for Amicus Curiae National Alliance for Public Charter Schools. Richard D. White, Jr. and Joe M. Fears, Barber & Bartz, Tulsa, Oklahoma, for Amicus Curiae Seton Education Partners. Gordon D. Todd, Dino L. LaVerghetta, and Mackenzi J. Siebert Ehrett, Sidley Austin, LLP, Washington D.C., for Amicus Curiae Seton Education Partners. Mikayla Culbertson, Sidley Austin, LLP, Dallas, Texas, for Amicus Curiae Seton Education Partners. Jason A. Reese, Goodwin/Lewis, PLLC, Oklahoma City, Oklahoma, for Amici Curiae Liberty Justice Center and the Jewish Coalition for Religious Liberty. Brently C. Olsson, Cheek Law Firm, PLLC, Oklahoma City, Oklahoma, for Amicus Curiae Wisconsin Institute for Law & Liberty, Inc. Richard M. Esenberg, Cory Brewer, and Skylar Croy, Wisconsin Institute for Law & Liberty, Inc., Milwaukee, Wisconsin, for Amicus Curiae Wisconsin Institute for Law & Liberty, Inc. Ryan A. Haynie, Oklahoma Council of Public Affairs, Oklahoma City, Oklahoma, for Amicus Curia Oklahoma Council of Public Affairs. Winchester, J. ¶1 Petitioner Gentner Drummond, Attorney General for the State of Oklahoma, ex rel. State of Oklahoma ("State") seeks a writ of mandamus directing Respondents Oklahoma Statewide Virtual Charter School Board, Robert Franklin, William Pearson, Nellie Tayloe Sanders, Brian Bobek, and Scott Strawn (collectively "Charter School Board") to rescind the Charter School Board's contract with Intervenor St. Isidore of Seville Catholic Virtual School ("St. Isidore") on grounds that the contract ("St. Isidore Contract") violates state and federal law. The State also seeks a declaratory judgment that the St. Isidore Contract is unconstitutional. The Court held oral argument on April 2, 2024. ¶2 Original jurisdiction is assumed. Okla. Const. art. 7, § 4. The Court invokes its publici juris doctrine to assume original jurisdiction in this matter as the State has presented the Court with an issue of public interest that warrants an immediate judicial determination. Indep. Sch. Dist. #52 of Okla. Cty. v. Hofmeister, 2020 OK 56, ¶ 60, 473 P.3d 475, 500. We grant the extraordinary and declaratory relief sought by the State. Ethics Comm'n of State of Okla. v. Cullison, 1993 OK 37, ¶ 4, 850 P.2d 1069, 1072. FACTS AND PROCEDURAL HISTORY ¶3 The Oklahoma Legislature has a constitutional duty to establish a system of free public schools. Okla. Const. art. 13, § 1. In 1999, the Legislature enacted the Oklahoma Charter Schools Act ("Act"), 70 O.S. Supp. 2023, §§ 3-130 et seq., to help carry out this duty. Under the Act, a charter school is a public school, sponsored by an entity such as a school district, technology center, regional institution of higher education, federally recognized tribe, or the State Board of Education. 70 O.S. Supp. 2022, § 3-132. Charter schools use innovative methods and forms of accountability, provide academic choices for students and parents, and offer different professional opportunities for teachers and administrators. 70 O.S.2021, § 3-131. However, the Act requires that all charter schools be nonsectarian in their programs, admission policies, and other operations. 70 O.S. Supp. 2022, § 3-132. ¶4 The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Charter School Board to establish St. Isidore, a religious virtual charter school. St. Isidore does not dispute that it is a religious institution. Its purpose is "[t]o create, establish, and operate" the school as a Catholic school. Specifically, it plans to derive "its original characteristics and its structure as a genuine instrument of the church" and participate "in the evangelizing mission of the church."1 And [r]ooted in the Catholic understanding of the human person and her or his relationship with God and neighbor, [St. Isidore] fully embraces the teachings of the Catholic Church's Magisterium, and [St. Isidore] fully incorporates these into every aspect of the School, including but not limited to its curriculum and co-curricular activities.2 St. Isidore has two members, the Archbishop of the Archdiocese of Oklahoma City and the Bishop of the Diocese of Tulsa. A Board of Directors (between 5 and 15 members) will direct and manage the school; not more than two non-Catholics may serve on the board. ¶5 The Charter School Board is the state body with the sole authority to form virtual charter schools under the Act. 70 O.S.2021, § 3-145.1.3 On June 5, 2023, the Charter School Board voted 3-2 to approve St. Isidore's revised application to become an Oklahoma virtual charter school. On October 9, 2023, the Charter School Board voted again 3-2 to approve St. Isidore's contract for sponsorship. St. Isidore was created with the Charter School Board as its government sponsor. On October 16, 2023, the parties executed the St. Isidore Contract. The St. Isidore Contract commences on July 1, 2024. ¶6 A Virtual Charter School Authorization and Oversight Manual provides the model template for a virtual charter school contract. However, the Charter School Board can negotiate contract terms that add to or vary from the model contract, if the terms comply with "applicable state, federal, local, and/or tribal law." Okla. Admin. Code § 777:10-3-3(g). ¶7 The St. Isidore Contract varies significantly from the model contract. The St. Isidore Contract recognizes that certain rights, exemptions, or entitlements apply to St. Isidore as a religious organization under state and federal law, including the "ministerial exception" and aspects of the "church autonomy doctrine."4 The St. Isidore Contract does not contain the model contract section titled "Prohibition of religious affiliation," which provides that, except as permitted by applicable law, a charter school "shall be nonsectarian in its programs." Instead, the St. Isidore Contract states that St. Isidore has the right to freely exercise its religious beliefs and practices consistent with its religious protections.5 Under the model contract, a charter school must warrant "that it is not affiliated with a nonpublic sectarian school or religious institution." In the St. Isidore Contract, St. Isidore warrants that it is affiliated with a nonpublic sectarian school or religious institution.6 ¶8 Due to the nature of the St. Isidore Contract, the State seeks a writ of mandamus directing the Charter School Board to rescind the St. Isidore Contract. The question before this Court is whether the St. Isidore Contract violates state and federal law and is unconstitutional. We hold that the St. Isidore Contract violates the Oklahoma Constitution, the Act, and the federal Establishment Clause. St. Isidore is a public charter school. The Act does not allow a charter school to be sectarian in its programs, admissions policies, employment practices, and operations. The Act's mandate is in line with the Oklahoma Constitution and the Establishment Clause, which both prohibit the State from using public money for the establishment of a religious institution. St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. Under both state and federal law, the State is not authorized to establish or fund St. Isidore. DISCUSSION I. OKLAHOMA'S CONSTITUTION AND THE ACT PROHIBIT THE ST. ISIDORE CONTRACT. A. Article 2, Section 5 of the Oklahoma Constitution prohibits the State from using public money for the benefit or support of any religious institution. ¶9 We first look to the Oklahoma Constitution. Article 2, Section 5 states: No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such. Okla. Const. art. 2, § 5. The objective of construing the Oklahoma Constitution is to give effect to the framers' intent, as well as the people adopting it. Shaw v. Grumbine, 1929 OK 116, ¶ 30, 278 P. 311, 315 (quoting Lake Cty. v. Rollins, 130 U.S. 662 (1889)). ¶10 Our Court discussed the framers' intent in drafting Article 2, Section 5 in Prescott v. Oklahoma Capitol Preservation Commission, 2015 OK 54, 373 P.3d 1032, wherein we held that the placement of a Ten Commandments monument on the grounds of the Oklahoma State Capitol violated Article 2, Section 5. The Court concluded that although the State did not spend public funds to acquire the monument, the monument operated "for the use, benefit or support of a sect or system of religion." Id. ¶ 7, 373 P.3d at 1034. The Court held: The plain intent of Article 2, Section 5 is to ban State Government, its officials, and its subdivisions from using public money or property for the benefit of any religious purpose. Use of the words "no," "ever," and "any" reflects the broad and expansive reach of the ban. Id. ¶ 4, 373 P.3d at 1033. Justice Taylor, concurring, went into greater detail regarding the framers' intent, citing Albert H. Ellis, the Second Vice President of the Constitutional Convention. Mr. Ellis explained that Article 2, Section 5: [N]ot only guards the citizens right to be free from taxation for the support of the church, but protects the rights of all denominations, however few the number of their respective adherents, by with-holding any incentive that might prompt any ecclesiastical body to participate in political struggles and by reason of their numbers exert an undue influence and become beneficiaries at the expense of the public and a menace to weaker denominations and ultimately destructive of rel[i]gious liberty. Id. ¶ 5, 373 P.3d at 1037 (Taylor, J., concurring in denial of reh'g) (citations omitted). The concurrence also noted that the framers were religious men who started their proceedings during the Convention with prayers. However, "they recognized the necessity of a complete separation of church and state and sought to prevent the ills that would befall a state if they failed to provide for this complete separation in the Oklahoma Constitution." Id. ¶ 6, 373 P.3d at 1038.7 ¶11 As contended by the Amici Curiae in this case, the Prescott Court also wrestled with whether Article 2, Section 5 is a Blaine Amendment. Justice Gurich noted in her concurrence: [I]n spite of the court filings in this case, which conclude that [Article 2, Section 5] of the Oklahoma Constitution is a Blaine Amendment, nothing in the recorded history of the Oklahoma Constitutional Convention, this Court's case law, or any other historical evidence supports this conclusion. In fact, all evidence is to the contrary. Id. ¶ 16, 373 P.3d at 1050 (Gurich, J., concurring in denial of reh'g). After discussing the long history of the Blaine Amendment in detail, she concluded: Characterizing [Article 2, Section 5] of the Oklahoma Constitution as a Blaine Amendment completely ignores the intent of the founders of the Oklahoma Constitution who purposely sought to ensure future generations of Oklahomans would be free to practice religious freedom without fear of governmental intervention. Id. ¶ 24, 373 P.3d at 1052.8 ¶12 The framers' intent is clear: the State is prohibited from using public money for the "use, benefit or support of a sect or system of religion." Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution. Enforcing the St. Isidore Contract would create a slippery slope and what the framers' warned against--the destruction of Oklahomans' freedom to practice religion without fear of governmental intervention. See Gurney v. Ferguson, 1941 OK 397, ¶ 16, 122 P.2d 1002, 1005 (warning of an "at least partial control of [sectarian] schools by successive legislative enactment" and noting "[f]rom partial control to an effort at complete control might well be the expected development"). B. Article 1, Section 5 of the Oklahoma Constitution and the Act mandate that public charter schools are nonsectarian. ¶13 The Oklahoma Constitution also delegates to the Legislature the constitutional duty to establish and maintain a system of free public schools. Okla. Const. art. 13, § 1. As part of its duty, the Constitution mandates: Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control[.] Okla. Const. art. 1, § 5. ¶14 The Legislature enacted the Act to help carry out this constitutional duty. Under the Act, a charter school is a public school, sponsored by a governmental entity. 70 O.S. Supp. 2022, § 3-132(D). In line with the constitutional mandate, the Act requires that all charter schools be nonsectarian in their programs, admission policies, and other operations. 70 O.S.2021, § 3-136(A)(2). The Act prohibits the Charter School Board from sponsoring a charter school program that is affiliated with a nonpublic sectarian school or religious institution. Id. Our Court has defined "sectarian institution" as a "school or institution of learning which is owned and controlled by a church and which is avowedly maintained and conducted so that the children of parents of that particular faith would be taught in that school the religious tenets of the church." Gurney, 1941 OK 397, ¶ 7, 122 P.2d at 1003. ¶15 There is no question that St. Isidore is a sectarian institution and will be sectarian in its programs and operations. As set forth above, the Charter School Board had to alter various terms of the model contract to draft the St. Isidore Contract, allowing it to operate as a religious charter school. However, in changing the various terms of the model contract, the St. Isidore Contract violates the plain language of the Act and the Oklahoma Constitution. II. AS A PUBLIC CHARTER SCHOOL, ST. ISIDORE IS A GOVERNMENTAL ENTITY AND A STATE ACTOR. ¶16 The Charter School Board and St. Isidore contend that the Oklahoma Constitution provision requiring that Oklahoma's system of public schools be free from sectarian control does not apply to St. Isidore because St. Isidore is a private corporation and not a public school. They further argue that despite its sectarian nature, the St. Isidore Contract does not violate the Oklahoma Constitution or the Act because St. Isidore is merely a private actor contracting with the State to perform a substantial benefit for the State. The Charter School Board and St. Isidore rely primarily on two Oklahoma cases to support their contention: Murrow Indian Orphans Home v. Childers, 1946 OK 187, 171 P.2d 600, and Oliver v. Hofmeister, 2016 OK 15, 368 P.3d 1270. ¶17 These cases are distinguishable from the facts before us. In Murrow, the Court held that state funds paid to a sectarian institution in exchange for the housing and care of orphans discharged the State's duty to provide for needy children and did not violate Article 2, Section 5 of the Oklahoma Constitution. 1946 OK 187, ¶ 9, 171 P.2d at 603. However, the Court specifically noted that the institution had sectarian character as an organization and in its management but denied that it indoctrinated its dependent children. Instead, the children were allowed complete freedom of worship, and the orphanage did not mandate attendance at its church services. Id. ¶ 2, 171 P.2d at 601. We determined, "[i]t is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects that the [S]tate must not do." Id. ¶ 7, 171 P.2d at 602. ¶18 In Oliver, the Court found that a state-funded scholarship program allowing parents of students with disabilities to apply for a scholarship for their children to attend private school did not violate Article 2, Section 5. 2016 OK 15, ¶ 27, 368 P.3d at 1277. Under the legislation at issue, the State would offset tuition at participating private schools through scholarships to eligible students. The State paid the scholarship funds directly to the parent and participation was purely voluntary. Any private school--sectarian or non-sectarian--was eligible to participate in the program. The Court held the scholarship program did not "directly fund religious activities" in violation of Article 2, Section 5. Id. ¶ 21, 368 P.3d at 1276. The program did not disperse funds directly to any private sectarian school until a parent of an eligible student made a private, independent selection. Any benefit to a participating sectarian school arose solely from the choice of the parent, not from any decree from the State. Id. ¶ 26, 368 P.3d at 1277. ¶19 Here, there is no question that the State will provide monetary support to teach a Catholic curriculum, and students at St. Isidore will be required to participate in the religious curriculum, both of which the Murrow Court disallowed. The funding will go directly to St. Isidore, dissimilar from giving scholarship funds to parents as in Oliver. The State will be directly funding a religious school and encouraging students to attend it. ¶20 Even more importantly, the present case does not involve a religious entity unaffiliated with the State providing the State with a substantial benefit. Instead, these cases are inapplicable because St. Isidore, a public charter school, is a governmental entity and state actor. A. St. Isidore is a governmental entity under the Act. ¶21 The Act expressly states that a "charter school" means a "public school" established by contract with a school district or other governmental entity. See 70 O.S. Supp. 2022, § 3-132(D). The Oklahoma School Code defines "public school" as "all free schools supported by public taxation." 70 O.S.2021, § 1-106.9 Charter schools must "be equally free and open to all students as traditional public schools." Id. § 3-135(A)(9). They must not "charge tuition or fees." Id. § 3-136(A)(10). Oklahoma charter schools fall within the definition of a public school. ¶22 Charter schools are also "subject to the same academic standards and expectations as existing public schools." Id. §§ 3-135(A)(11), 3-136(A)(10). Charter schools must comply with the same rules that govern public schools on school-year length, bus transportation, student testing, student suspension, and financial reporting and auditing. Id. §§ 3-135(C), 3-136(A)(4), (6), (11), (12), and (18), 3-141(A), 3-145.3(E). A charter school must also comply with all "laws relating to the education of children with disabilities in the same manner as a school district." Id. § 3-136(A)(7). ¶23 Charter schools receive state "funding in accordance with statutory requirements and guidelines for existing public schools." Id. § 3-135(A)(12). The employees of charter schools are eligible for the same State retirement benefits that Oklahoma provides teachers at other public schools and the insurance programs available to the employees of the charter schools' governmental sponsors. Id. §§ 3-136(A)(14), (15). ¶24 The Charter School Board is subject to the same conflict of interest and continuing education requirements as a local school board. Id. §§ 3-136(A)(6), 3-145.3(D)-(F). The Charter School Board exercises significant ongoing oversight and evaluation of all sponsored virtual charter schools through data collection, site visits, audits, attendance at the school's governing board meetings, performance reports, and external school reviews. The Charter School Board has the power to place the school on probation if it finds deficiencies and ultimately close the school if it fails to resolve its deficiencies. See 70 O.S. Supp. 2023, § 3-132.2(A). ¶25 Charter schools, like other governmental entities, must "comply with the Oklahoma Open Meeting Act and the Oklahoma Open Records Act." 70 O.S.2021, § 3-136(A)(16). Each public charter school operates as its own "local education agency" and is covered under the Oklahoma Governmental Tort Claims Act as its own "school district." Id. §§ 3-136(A)(13), 3-142(C), 3-145.3(C). ¶26 The Legislature created Oklahoma charter schools, and Oklahoma law treats them as public schools and governmental bodies. They have many of the same privileges, responsibilities, and legal requirements that govern traditional public schools. They are creatures of state law and may only operate under the authority granted to them by their charters with the State. St. Isidore will be acting as a surrogate of the State in providing free public education as any other state-sponsored charter school. Therefore, St. Isidore, a public charter school, is a governmental entity and state actor.10 B. St. Isidore is a state actor under the U.S. Supreme Court state actor tests. ¶27 The Charter School Board and St. Isidore claim that St. Isidore is not a state actor by the legislative designation of public school. Their argument still fails because a private actor may nonetheless be deemed a state actor whenever there is a close nexus between the State and the challenged action that private behavior may be treated as that of the State. See Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974); see also Scott v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 84, ¶ 28, 313 P.3d 891, 900 (holding a private not-for-profit organization was a state actor when it behaved like a state agency). ¶28 The U.S. Supreme Court has applied five "state actor" tests over the years, i.e., the "significant encouragement" test, the "willful participant in joint activity" test, the government "control" test, the "entwinement" test, and the "public function" test. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 298 (2001); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); see also VDARE Found. v. City of Colorado Springs, 11 F.4th 1151, 1160 (10th Cir. 2021), cert. denied, 142 S. Ct. 1208 (Feb. 28, 2022). "If one of the tests indicates a party is a state actor, that alone is sufficient to find the party a state actor." Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 596 (10th Cir. 1999). ¶29 St. Isidore is a state actor under at least two tests--the entwinement and public function tests. First, under the entwinement test, the U.S. Supreme Court has stated that "a nominally private entity [i]s a state actor . . . when it is 'entwined with governmental policies,' or when the government is 'entwined in [its] management or control.'" Brentwood Acad., 531 U.S. at 296 (quoting Evans v. Newton, 382 U.S. 296, 299 (1966)). As set forth above, Oklahoma charter schools are entwined with the State. Governmental entities serve as sponsors for the charter schools. As its sponsor, the Charter School Board will provide oversight of the operation for St. Isidore, monitor its performance and legal compliance, and decide whether to renew or revoke St. Isidore's charter. As a state-created entity, charter schools also receive many of the same legal protections and benefits as their government sponsor. The State's entwinement expands to the internal operations and affairs of the charter schools. ¶30 Second, under the "public function" test, it is sufficient to show that "the private entity performs a traditional, exclusive public function." Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 809 (2019). The provision of education may not be a traditionally exclusive public function, but the Oklahoma Constitutional provision for free public education is exclusively a public function. Even more, a private entity is a state actor when the government has outsourced one of its constitutional obligations to the entity. Id. at 810 n.1. ¶31 The Charter School Board and St. Isidore rely primarily on Rendell-Baker v. Kohn, 457 U.S. 830 (1982), to support that Oklahoma charter schools are not state actors. The U.S. Supreme Court in Rendell-Baker held that a private school for troubled youths was not a state actor for purposes of employment-related claims. The state regulated the school and provided substantial governmental funding. The school obtained most of its students through referrals from public schools. Id. at 832-35, 843. However, the key difference between Rendell-Baker and this case is Oklahoma charter schools are public schools created through governmental action, not private like in Rendell-Baker. ¶32 A recent Fourth Circuit Court of Appeals case, Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2022), cert. denied, 1143 S. Ct. 2657 (June 26, 2023), is instructive. The en banc Fourth Circuit concluded that a charter school operator was a state actor for purposes of the students' equal protection claim, challenging a dress code requirement that females wear skirts. The students in Peltier argued that the charter school qualified as a state actor because the operation of schools, designated by North Carolina law as public, performed an exclusively public function. And by statute, the state had delegated its duty, in part, to charter school operators to fulfill the state's constitutional duty to provide free, universal schools. Id. at 116. ¶33 Relying on Rendall-Baker, the charter school argued that it was merely a private entity fulfilling a contract with the state like the Charter School Board and St. Isidore contend in this case. The school argued that the state did not require a student to attend any specific charter school, and the state had not delegated to charter schools the responsibility to educate North Carolina students. Id. ¶34 The statutory framework of North Carolina is much like Oklahoma's Act, and charter schools may only operate under the authority granted to them by their charters with the state. Within its statutes, North Carolina also designated its charter schools as public. The Peltier Court noted that rejecting the state's designation of such schools as public institutions would infringe on North Carolina's sovereign prerogative, undermining fundamental principles of federalism. Id. at 121. ¶35 Applying the "public function" test, the Peltier Court concluded that the charter school operated in furtherance of the state's constitutional obligation to provide free, universal education to its residents. The court rejected the argument that charter schools were an "alternative method" of education--such as private schools or home schooling--because that position ignored the universal and free nature of the public school system. In operating a school that is part of the North Carolina public school system, the charter school performed a function traditionally and exclusively reserved to the state. Id. at 119. ¶36 Importantly, the Peltier court also distinguished Rendell-Baker by noting that in material contrast to the personnel decisions at issue in Rendell-Baker: [The charter school] implemented its dress code, including the skirts requirement, as a central component of the public school's educational philosophy . . . . By [the charter school's] own admission, the skirts requirement directly impacts the school's core educational function and, thus, directly impacts the constitutional responsibility that North Carolina has delegated to [the charter school]. Id. at 120. ¶37 As in Peltier, Oklahoma fulfilled its constitutional duty, in part, with the passage of the Act, which sets the procedure for the creation and funding of public charter schools. Oklahoma exercised its sovereign prerogative to treat these state-created and state-funded schools as public institutions that perform the traditionally exclusive government function of operating the State's free public schools. St. Isidore will implement a religious curriculum and activities that directly impact the school's core education function, and thus, the constitutional responsibility that Oklahoma delegated to the charter schools. Just as in Peltier, St. Isidore is a public charter school and a state actor.11 III. THE ESTABLISHMENT CLAUSE PROHIBITS THE ST. ISIDORE CONTRACT. ¶38 We next look at the U.S. Constitution. While we have already found the St. Isidore Contract to violate two provisions of the Oklahoma Constitution, which affords bona fide, separate, adequate, and independent grounds upon which today's opinion is rested, the St. Isidore Contract also violates the federal Establishment Clause. See Michigan v. Long, 463 U.S. 1032, 1041 (1983). ¶39 Under the Establishment Clause of the First Amendment, made binding upon the States through the Fourteenth Amendment, Oklahoma cannot pass laws "which aid one religion, aid all religions, or prefer one religion over another." Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947). The Establishment Clause prohibits government spending in direct support of any religious activities or institutions. Id. The Establishment Clause also prohibits the government from participating in the same religious exercise that the law protects when performed by a private party. See Locke v. Davey, 540 U.S. 712, 718 (2004) (recognizing that there is "play in the joints" between what the Establishment Clause permits, and the Free Exercise Clause compels). Thus, an Establishment Clause case hinges on whether religious activity involves a "state actor" or constitutes "state action." ¶40 The Establishment Clause cases from the U.S. Supreme Court have not dealt with the creation of a religious public school. Rather, the cases have revolved around religious acts in public schools. In Kennedy v. Bremerton School District, 597 U.S. 507, 541-42 (2022), the U.S. Supreme Court discussed comparable situations that violated the Establishment Clause, specifically: Zorach v. Clauson, 343 U.S. 306 (1952), where the Court held that requiring or persuading students to spend time in religious instruction was a violation; Lee v. Weisman, 505 U.S. 577 (1992), where the Court held that reciting prayers as part of an official graduation ceremony because the school practically compelled attendance and participation was a violation; and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), where the Court held that broadcasting prayer over the public address system and activities where students were required or expected to participate was a violation. These cases demonstrate the Establishment Clause prohibits public schools (state actors) from requiring or expecting students to participate in religious activities. ¶41 Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause. We hold that the St. Isidore Contract establishing a religious public charter school violates the Establishment Clause. IV. THE FREE EXERCISE CLAUSE IS NOT IMPLICATED IN THIS CASE. ¶42 The Charter School Board and St. Isidore contend that the Free Exercise Clause of the First Amendment prohibits a state from denying St. Isidore its right to operate as a charter school solely because it is religious. In support, they point to recent U.S. Supreme Court decisions that held that once a state makes a public benefit available to its citizens, the state cannot exclude a religious entity's eligibility solely because of its religious affiliation. If a state does so, it violates the Free Exercise Clause. See Carson v. Makin, 596 U.S. 767 (2022) (holding the "nonsectarian" requirement of Maine's tuition assistance program for private secondary schools violated the Free Exercise Clause); Espinoza v. Mont. Dep't of Rev., 591 U.S. 464 (2020) (concluding the state scholarship program for students attending private schools was permissible under the Free Exercise Clause); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) (holding the denial of grants to religiously affiliated applicants for purchase of rubber playground surfaces violated the Free Exercise Clause) (collectively "the Free Exercise Trilogy"). ¶43 The Free Exercise Trilogy cases do not apply to the governmental action in this case. St. Isidore is a state-created school that does not exist independently of the State. Unlike the private entities in the Free Exercise Trilogy cases, St. Isidore was created in furtherance of the State's objective of providing free public education. The Carson Court specifically distinguished that the private schools at issue "were not public schools," noting all the differences between private schools and public schools. 596 U.S. at 783-85. St. Isidore further contracted with the State to receive complete and direct financial support for a public charter school--funding mandated by the Act. In Carson, the Court noted that the state did not cover the full cost of the private secondary schools. Id. at 771. In Espinoza, the individual receiving the state scholarship determined its allocation, not the state. 591 U.S. at 474. In Trinity Lutheran, the government funding was for a non-religious use, playground resurfacing. 582 U.S. at 464-65. Finally, St. Isidore is not a religious private school or organization seeking to be treated equally with other private entities relative to a tax credit, grant, or tuition assistance. ¶44 The differences between the Free Exercise Trilogy cases and this case are at the core of what this case entails--what St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment. See, e.g., Widmar v. Vincent, 454 U.S. 263, 270-71 (1981). CONCLUSION ¶45 Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian. However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State. This State's establishment of a religious charter school violates Oklahoma statutes, the Oklahoma Constitution, and the Establishment Clause. St. Isidore cannot justify its creation by invoking Free Exercise rights as a religious entity. St. Isidore came into existence through its charter with the State and will function as a component of the State's public school system. This case turns on the State's contracted-for religious teachings and activities through a new public charter school, not the State's exclusion of a religious entity. The Court grants the extraordinary and declaratory relief sought by the State. The St. Isidore Contract violates state and federal law and is unconstitutional. By writ of mandamus, we direct the Charter School Board to rescind its contract with St. Isidore. Any petition for rehearing regarding this matter shall be filed within ten (10) days of the date of this opinion. ORIGINAL JURISDICTION ASSUMED; WRIT OF MANDAMUS AND DECLARATORY RELIEF GRANTED. Kauger, Winchester, Edmondson, Combs, Gurich, and Darby, JJ., concur. Rowe, V.C.J. (by separate writing), concurs in part and dissents in part. Kuehn, J. (by separate writing), dissents. Kane, C.J., recused. FOOTNOTES 1 Pet'r's. App. I, Ex. B, p. 92. 2 Pet'r's. App. I, Ex. B, p. 276. 3 On July 1, 2024, the Statewide Charter School Board will assume the duties of the Charter School Board. 70 O.S. Supp. 2023, § 3-132.1. 4 Pet'r's. App. I, Ex. A, p. 3. 5 Pet'r's. App. I, Ex. A, p. 13. 6 Pet'r's. App. I, Ex. A, p. 20. 7 After Prescott, Oklahoma voters in 2016, through State Question 790, were granted the opportunity to repeal Article 2, Section 5 of the Oklahoma Constitution. The voters declined to do so. 8 Other Justices also concluded that Article 2, Section 5 is not a Blaine Amendment. Justice Taylor noted that in his very complete discussion of Article 2, Section 5, Mr. Ellis never mentioned the Blaine Amendment and explained how any reliance on Article 2, Section 5 as a Blaine Amendment is misplaced. Prescott, 2015 OK 54, ¶¶ 5, 17-20, 373 P.3d at 1037, 1040-41 (Taylor, J., concurring in denial of reh'g). Justice Edmondson noted that the origin of Article 2, Section 5 was with Thomas Jefferson and the example set by the People of Virginia and not the 1876 Blaine Amendment. Id. ¶ 1, 373 P.3d at 1036 (Edmondson, J., concurring in denial of reh'g). Justice Combs, dissenting from the Court, stated that he "would agree with the other Justices of this Court that [Article 2, Section 5] is not Oklahoma's version of a Blaine Amendment. The breadth and scope of [Article 2, Section 5] differ significantly from the failed Blaine Amendment." Id. ¶ 12, 373 P.3d at 1057 (Combs, V.C.J., dissenting to denial of reh'g). 9 The St. Isidore Contract also used a similar definition of "Public School." It states a "school that is free and supported by funds appropriated by the Legislature[.]" Pet'r's. App. I, Ex. A, p. 3. 10 See, e.g., Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192 (1988) (state universities); United States v. Ackerman, 831 F.3d 1292, 1295-1300 (10th Cir. 2016) (National Center for Missing and Exploited Children). 11 The Tenth Circuit Court of Appeals has also treated charter schools as state actors. See Coleman v. Utah State Charter Sch. Bd., 673 F. App'x 822, 830 (10th Cir. 2016) (noting "charter schools are public schools using public funds to educate school children"); Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010) (holding a charter school was a governmental entity); Milonas v. Williams, 691 F.2d 931, 940 (10th Cir. 1982) (holding state funding, contracts with state, and extensive state regulation were some of the facts that demonstrated sufficiently close nexus between state and operators of school). Other federal courts across the county, including the Third and Ninth Circuits, have treated charter schools as governmental entities or state actors. See, e.g., Family Civil Liberties Union v. Dep't of Children & Families, 837 F. App'x 864, 896 (3d Cir. 2020); Nampa Classical Acad. v. Goesling, 447 F. App'x 776, 777-78 (9th Cir. 2011); Jones v. Sabis Educ. Sys., Inc., 52 F. Supp. 2d 868, 876, 879 (N.D. Ill. 1999); Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897, 906 (W.D. Mich. 2000); United States v. Minn. Transitions Charter Schs., 50 F. SupP.3d 1106, 1120 (D. Minn. 2014); Patrick v. Success Acad. Charter Schs., 354 F. SupP.3d 185, 209 n.24 (E.D.N.Y. 2018); Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968, 972-73 (S.D. Ohio 2002); Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 908 F. Supp. 2d 597, 604-05 (M.D. Pa. 2012). 12 The Charter School Board and St. Isidore contend that the mandate that a charter school is nonsectarian violates the Oklahoma Religious Freedom Act ("ORFA"), 51 O.S. Supp. 2023, §§ 251 et seq. They rely on a recent amendment to ORFA, which states that "[i]t shall be deemed a substantial burden to exclude any person or entity from participation in or receipt of governmental funds, benefits, programs, or exemptions based solely on the religious character or affiliation of the person or entity." 51 O.S. Supp. 2023, § 253(D). St. Isidore claims that the ORFA implicitly overrode section 3-132 of the Act as the "most recently enacted law." We disagree. The Legislature amended the Act after the most recent amendment to ORFA. See Laws 2023, SB 404, c. 189, § 2, eff. November 1, 2023, available at http://www.oklegislature.gov/BillInfo.aspx?Bill=sb%20404&Session=2300; Laws 2023, SB 516, c. 323, § 5, eff. July 1, 2024, available at http://www.oklegislature.gov/BillInfo.aspx?Bill=sb516&Session=2300. We have held that "[w]here statutes conflict in part, the one last passed, which is the later declaration of the Legislature, should prevail, superseding and modifying the former statute only to the extent of such conflict." City of Sand Springs v. Dep't of Pub. Welfare, 1980 OK 36, ¶ 28, 608 P.2d 1139, 1151. The section regarding the prohibition on sectarian schools remained in the amended Act, and the Act controls over the ORFA. Thus, the ORFA did not override the Act's requirement that charter schools be nonsectarian. Even more, St. Isidore is a governmental entity and state actor, not a private entity. The ORFA is not implicated in this case for the same reasons the Free Exercise Clause is not implicated. ROWE, V.C.J., CONCURRING IN PART AND DISSENTING IN PART: ¶1 I concur with the Majority that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian. ¶2 I dissent to the remainder of the Majority's opinion. KUEHN, J., DISSENTING: ¶1 I dissent to the Majority's opinion. St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution. A. Allowing religious organizations to contract with the State to provide educational services violates neither the "no aid" provision of the Oklahoma Constitution, nor the Establishment Clause of the First Amendment. ¶2 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... ." U.S.Const. Amend. I. Article 2, Section 5 of the Oklahoma Constitution, commonly referred to as the "no aid" provision, see Oliver v. Hofmeister, 368 P.3d 1270, 2016 OK 15, ¶ 3, bars public assets from being "appropriated, applied, donated, or used, directly or indirectly," for the "use, benefit, or support of" any religious organization, institution, or position. The Majority erroneously concludes that allowing sectarian organizations to operate charter schools violates these provisions. ¶3 Petitioner concedes his argument is not based on the fact that St. Isidore would receive public funds. His argument is that St. Isidore would be an arm of the government, simply because it is designated as a "public school" in the Act. But the reasoning that he, and the Majority, use to support that argument is circular. It goes something like this: (1) the State constitutionally must provide non-sectarian public education to all children; (2) publicly funded schools are, by definition, arms of the State; (3) under the Charter Schools Act, charter schools are defined as "public schools"; therefore, (4) charter schools are state actors and, as such, must be non-sectarian. ¶4 This argument is flawed. The Oklahoma Constitution requires the State to create a system of public schools, "free from sectarian control" and available to all children in the State. Okla.Const. Art. 1, § 5. It does not bar the State from contracting for education services with sectarian organizations, so long as a state-funded, secular education remains available statewide. St. Isidore would not be replacing any secular school, only adding to the options available, which is the heart of the Charter Schools Act. Simply put, requiring the state to fund non-sectarian education is not the same as allowing some funds to flow to sectarian education programs. ¶5 What about the "no aid" command in Article 2, Section 5 of our Constitution? As this Court has held many times, the "no aid" clause is not violated by contracts for services. The State contracts with private entities all the time for the performance of countless functions, from building roads to renewing motor-vehicle license tags. In contexts very similar to this one -- involving public funds and religious organizations -- this Court has held that public-private contracts are not invalid simply because a religious entity might receive some tangential benefit. In Oliver, 2016 OK 15, we rejected a "no aid" challenge to a school-voucher scholarship program. In Burkhardt v. City of Enid, 1989 OK 45, 771 P.2d 608, we rejected a challenge to the use of public funds for a purchase and lease-back arrangement involving a sectarian university. And in Murrow Indian Orphans Home v. Childers, 1946 OK 187, 171 P.2d 600, we approved the use of public funds to contract with the Baptist Church to operate an orphanage. The guiding principle in these cases is this: "[A]s long as the services being provided 'involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state, there is no constitutional provision offended.'" Oliver, 2016 OK 15, ¶ 19 (quoting Morrow, 1946 OK 187 at ¶ 9).1 In short, contracts for services -- including educational services -- do not violate the "no aid" provision of our Constitution. ¶6 For the same reasons, St. Isidore's operation of a charter school would not violate the Establishment Clause. There is no Establishment Clause issue if the action in question is not "state action." Petitioner's argument -- and the Majority's analysis -- depend on labeling all charter schools as "public schools," which is equivalent to "state actors." Again, this places form over substance. ¶7 A private entity, such as a religious organization, may be deemed a state actor if it performs a function traditionally considered the exclusive realm of the state. Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). But the Majority concedes that education is not a "traditionally exclusive public function." Majority at ¶ 30. It may be the State's prerogative to create a new, hybrid class of educational institutions called "charter schools," but that is not the same as claiming that education itself has traditionally been the exclusive prerogative of the State.2 ¶8 Nor can charter schools be considered state actors simply because the State regulates them. It hardly needs to be said that regulation alone does not transform a private entity into a public one. Jackson, id. at 350. Even an "extensive and detailed" regulatory scheme does not automatically transform an entity into a state actor. Id. The Charter Schools Act can place relevant requirements on prospective charter-school operators without thereby turning them into arms of the state. Ironically, one of the aims of the Act is to place fewer regulations on charter schools compared to traditional schools.3 It is undisputed that, aside from its religious affiliation, St. Isidore meets the requirements for operating a charter school. ¶9 Petitioner claims the Legislature made the analysis "easy" by labeling charter schools as public schools. 70 O.S. § 3-132(D). To the contrary, the analysis is easy because the realities belie such labeling. Regardless of how the State chooses to label charter schools, the Charter Schools Act is clearly an invitation for private entities to contract to provide educational choices. "[T]he definition of a particular program can always be manipulated to subsume the challenged condition," and allowing the State to "recast" a condition on funding in this manner would result in "the First Amendment ... reduced to a simple semantic exercise." Carson v. Makin, 142 S. Ct. 1987, 1999 (2022) (citations omitted). A similar instance of semantic legerdemain was attempted in Espinoza v. Montana Dept. of Revenue, 591 U.S. 464, 487 (2020), discussed below. ¶10 Contracting to provide educational alternatives is not the same as a wholesale outsourcing of a government function.4 The virtual charter school St. Isidore seeks to undertake would simply be a choice for students and parents. It would not be the only virtual charter school. It would not be the only charter school. But most important, it would not supplant any state-mandated sectarian public school. ¶11 By choice, the State created a new type of educational entity -- the charter school. By design, the very purpose of the Charter Schools Act is to allow private entities to experiment with innovative curricula and teaching methods, and to give students and parents "additional academic choices." 70 O.S. § 3-131(A). The State is not required to partner with private entities to provide common education. But if it does, it cannot close the door to an otherwise qualified entity simply because it is sectarian. Espinoza, 591 U.S. at 487; see also Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16 (1947) (a State cannot exclude individuals "because of their faith, or lack of it, from receiving the benefits of public welfare legislation"). Contracting with private entities to provide such educational choices does not violate Article 2, § 5 of the Oklahoma Constitution. B. Insofar as it denies religious organizations the chance to operate charter schools, the Charter Schools Act violates the Free Exercise Cla use of the First Amendment. ¶12 The latter part of the First Amendment, known as the "Free Exercise Clause," protects those who practice religion from laws that "impose special disabilities on the basis of ... religious status." Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017). Specifically, laws that disqualify otherwise eligible recipients from a public benefit, based solely on their religious character, impose "a penalty on the free exercise of religion that triggers the most exacting scrutiny." Id. To pass constitutional muster under the so-called "strict scrutiny" test, the State must advance a compelling interest that justifies the action in question. The State's interests must be of the "highest order," and the means used must be narrowly tailored in pursuit of those interests. Trinity, id. at 2024. ¶13 Espinoza v. Montana Dept. of Revenue, decided quite recently, involved a very similar tension between the Free Exercise Clause and a "no aid" provision in the Montana Constitution. The issue in Espinoza was whether students who received a state-funded scholarship to be used at private schools could use those funds at sectarian schools. Shortly after creation of the scholarship program, the Montana Department of Revenue promulgated a rule that, for purposes of the program, purported to redefine "qualified education provider" to exclude sectarian schools. The Department explained that the rule was necessary to reconcile the scholarship program with the "no aid" provision of the state's constitution. Espinoza, 591 U.S. at 467-470. ¶14 When parents sued for the right to apply scholarship funds to attend a sectarian school, the Montana Supreme Court approved of the exclusion as consistent with the state constitutional command to give "no aid" to sectarian schools via public funds. The United States Supreme Court reversed. The question presented was "whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana's no-aid provision to bar religious schools from the scholarship program." 591 U.S. at 474. Because the scholarship program discriminated on the basis of religion, it was subjected to the strictest scrutiny. Id. at 484. The Court found unconvincing the Department of Revenue's claim that such an interpretation of the "no aid" provision actually promoted religious liberty. And as for the argument that diverting public funds to sectarian schools served to rob public schools of funds, the Court simply noted that any such effect was a direct consequence of the scholarship program as a whole -- not to the fact that sectarian schools could take part. Id. at 485-86. ¶15 Similarly, the only compelling interest advanced by Petitioner in the instant case, to justify barring a religious organization from operating a charter school, is the "no aid" provision in our own Constitution. But as demonstrated above -- under the long-standing line of authority from Murrow, to Burkhardt, to Oliver -- that provision is not violated here. Contracting with a private entity that has religious affiliations, by itself, does not establish a State religion, nor does it favor one religion over another. Allowing St. Isidore to operate a charter school does not give it any preference over any other qualified entity, sectarian or otherwise. ¶16 I find nothing in the State or Federal Constitutions barring sectarian organizations, such as St. Isidore, from applying to operate charter schools. To the extent Section 3-136(A)(2) of the Charter Schools Act bars such organizations from even applying to operate a charter school, I would find it inconsistent with the Free Exercise Clause of the First Amendment.5 By reaching the opposite conclusion, the Majority's decision is destined for the same fate as the Montana Supreme Court's opinion in Espinoza. FOOTNOTES 1 Even if Petitioner did focus on the fact that State funds would go directly to St. Isidore, that argument would be meritless. The funds are not a donation, but compensation for services rendered. Whether payment goes to the student/parent, or the school directly, is of no practical difference under this scheme; if a student does not enroll, the school does not receive funds related to that additional student. 2 Instead, the Majority tries to reframe the relevant 'function' as something like, 'a state-wide system of publicly-funded education,' which of course by definition is a state function. 3 Charter schools are exempt from statutes and rules relating to schools, boards of education, and school districts. 70 O.S. § 3-136(A)(5). They are not required to hire teachers with state teaching certificates. https://sde.ok.gov/faqs/oklahoma-charter-schools-program. 4 Petitioner's brief ends with an analogy that demonstrates the flaw in his argument: [I]f the State decided to allocate public funds for private entities to beef up security, the State would of course be precluded from preventing the Catholic Church and other sectarian organizations from receiving those funds. However, if the State decided to start authorizing private entities to take over operations of the Oklahoma Highway Patrol, it would violate the Establishment Clause for the State to authorize a "Catholic Church Highway Patrol." The logical flaw is that, unlike law enforcement, enrollment in a charter school is fundamentally a choice for parents to make. St. Isidore would not be "taking over" any function that is traditionally the exclusive realm of the State. It would exist alongside state-mandated secular options. 5 The Act's requirement that charter schools be nonsectarian (70 O.S. § 3-136(A)(2)) also violates the Oklahoma Religious Freedom Act (OFRA), which mandates that the State shall not "substantially burden a person's free exercise of religion" -- even if the law or rule in question is one of general applicability. 51 O.S. § 253(A). As amended in November 2023, this statute specifies that the State may not exclude any entity from participating in a government program "based solely on [its] religious character or affiliation." 51 O.S. § 253(D). Aside from the fact that the Act's "nonsectarian" requirement violates the Free Exercise Clause, it is also a dead letter under Oklahoma law, as the ORFA is the more recent expression of legislative intent. City of Sand Springs v. Dep't. of Pub. Welfare, 1980 OK 36, ¶ 28, 608 P.2d 1139, 1151.

623d47f9-11c5-49d9-b1ce-2ae7bfd9fe22

Cathey v. Board of County Commissioners for McCurtain County

oklahoma

Oklahoma Supreme Court

CATHEY v. BD. OF COUNTY COMMISSIONERS FOR McCURTAIN COUNTY2024 OK 50Case Number: 121954Decided: 06/11/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MICHAEL W. CATHEY, and VONDEROSA PROPERTIES, LLC, Plaintiffs/Appellants,v.THE BOARD OF COUNTY COMMISSIONERS FOR McCURTAIN COUNTY, OKLAHOMA, Defendant/Appellee,andMcCURTAIN MEMORIAL MEDICAL MANAGEMENT, INC., doing business as McCURTAIN MEMORIAL HOSPITAL, Intervenor/Appellee. ON APPEAL FROM THE DISTRICT COURT OF McCURTAIN COUNTY Honorable Emily Maxwell, Trial Judge ¶0 The Board of County Commissioners for McCurtain County, Oklahoma, approved a ballot proposal of a lodging tax increase to fund a new county hospital to be submitted to the voters. Title 19 O.S. 2021 §383 required the proposal to be published for four weeks in a county newspaper before the election, but the Board did not publish it as required. Instead, the Board, along with the Hospital, engaged in an extensive three-month campaign to inform voters of the measure. The campaign included the use of a multitude of radio advertisements, four billboards, a television interview, multiple newspaper articles, two town hall meetings, three civic club meetings, several social media posts, and one newspaper publication of the proposal two days before the election. After the measure was approved by the voters, a lodging renter and property owner filed a lawsuit in the District Court of McCurtain County, Oklahoma, seeking to have the election declared null and void due to the lack of newspaper publication. The Hospital sought to have the election upheld. The trial court granted summary judgment in favor of the Board and Hospital, and against the lodging renter and property owner. The renter and owner appealed and filed a motion for oral argument. We retained the cause, deny the motion for oral argument, and hold that because the county commissioners neglected to follow the statutory publication requirements the voter-approved lodging tax increase is invalid. APPEAL PREVIOUSLY RETAINED;MOTION FOR ORAL ARGUMENT DENIED;TRIAL COURT REVERSED. Lysbeth George, Jana L. Knott, Oklahoma City, Oklahoma, for Appellants. David Floyd, Norman, Oklahoma, Mark Matloff, McCurtain County District Attorney, for Appellee, Idabel, Oklahoma, Bd. of Cty. Comm'rs. J. Christopher Davis, Tulsa, Oklahoma, Harvey D. Ellis, Jr., Lauren E. Kiefner, for Intervenor/Appellee, Oklahoma City, Oklahoma, McCurtain Mem. Med. Mgmt., Inc. KAUGER, J.: ¶1 We retained this cause to address whether the voter-approved lodging tax increase remains in effect when the statutory publication directives were not followed. We hold that it does not. FACTS AND PROCEDURAL TIMELINE ¶2 In the fall of 2020, the defendant/appellee, the Board of County Commissioners for McCurtain County, Oklahoma (Board) sought a voter-approved lodging tax increase to raise funds for the McCurtain County Hospital. The ballot proposition language sought a lodging tax increase of two percent (2%) "in addition to all other lodging taxes levied."1 The existing lodging tax rate was three percent (3%).2 The proposition was published four weeks in the McCurtain Gazette on October 8, 15, 22, and 29, 2020.3 The special election failed with 56.52% of the voters voting against it.4 ¶3 Almost two year later, on August 15, 2022, the Board adopted a resolution authorizing and calling for another special election to vote on imposing a two percent (2%) "increase of the existing hotel/lodging tax within McCurtain County, Oklahoma," to raise funds for the McCurtain County Hospital.5 The Board declared an emergency, and authorized and called for an election on the following proposition: Shall the existing hotel/lodging tax within McCurtain County, Oklahoma be increased by two percent (2%), effective as of April 1, 2023, for a term of Thirty (30) Years from the effective date of the tax or at the date of final payment of any debt incurred related to the tax, whichever occurs earlier, two percent (2%) increased portion of the proceeds of said tax to be utilized for the designing, constructing, financing, furnishing, equipping and providing fixtures for the McCurtain Memorial Hospital, authorizing the pledging of the two (2%) tax increase for debt service on any financing, and continuing maintenance expenses related to the New McCurtain Memorial Hospital?6 The August 15, 2022, Board minutes also call for the "Election Proposition and Notice to be published as required by law." 7 ¶4 Title 19 O.S. 2021 §§381-389, enacted in 1910, governs the procedures for county elections to be submitted to county voters. Title 19 O.S. 2021 §383 still provides: The mode of submitting questions to the people contemplated by the last two sections shall be the following: The whole question, including the sum desired to be raised, the amount of tax desired to be authorized, the rate per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature which can be set forth, and the penalty of its violation if there be one, is to be published at least four (4) weeks in some newspaper published in the county. If there be no such newspaper, the publication is to be made by posting up in at least one of the most public places in each election precinct in the county; and in all cases the notices shall name the time when such question will be voted upon, and the form in which the question shall be taken, and a copy of the question submitted shall be posted up at each place of voting during the day of election. (emphasis supplied). Title 19 O.S. 2021 §388 required specific words to be used in the ballot title, review by the district attorney, and publication pursuant to §383.8 ¶5 It is undisputed that the proposed proposition was not published for at least four weeks in any county newspaper.9 The statutory provisions do not establish any procedure for challenging a proposed election in general, or provide any consequences if the publishing requirement is unmet. The District Attorney reviewed and certified the legal correctness of the measure. ¶6 Even though the statutorily prescribed publication did not occur, numerous other measures of informing the 16,791 McCurtain County registered voters were used10 such as: 1. Brian Whitfield (Whitfield), the Chief Executive Officer of the Hospital, published numerous posts between August and November of 2022, regarding the proposal on the Hospital's facebook page which had approximately 4,131 followers;11 2. Four billboards were installed in McCurtain County from September to November of 2022, calling for a "YES" vote on the 2% lodging tax increase to support the construction of the future Hospital;12 3. Between September and November, 2022, at least one hundred seventy-three commercials aired on local radio regarding the measure;13 4. Kendra Gross (Gross), the Director of Academic Affairs of Southeastern Oklahoma State University -- McCurtain County Campus and President of the Board of Trustees which managed the Hospital, authored a series of articles offering public insight to the proposition that was published in McCurtain County newspapers weekend editions on September 10-11, and 17-18, 2022, October 1-2, 8-9, and 15-16, 2022, and November 3, 5-6, 2022;14 5. Gross spoke to the Lion's Club concerning the proposition on September 8, 2022,15 and on September 22, 2022, the County Commissioners hosted a public meeting where the full text of the proposition was presented;16 6. Gross and Whitfield spoke to the McCurtain County Kiwanis Club on October 4, 2022, and the Rotary Club on October 5, 2022;17 7. On October 24, 2022, and November 3, 2022, Gross spoke at two town hall meetings hosted by the hospital at the Southeastern Oklahoma State University Auditorium in Idabel18 which was also livestreamed on the McCurtain County Community News Facebook Page which had approximately 11,600 followers;19 8. Whitefield appeared on a television news station out of Shreveport, Louisiana, which covers McCurtain County news on October 25, 2022;20 9. Prior to the election Whitfield appeared on KBEL radio for a live interview where he discussed where the new hospital would be built, where the revenue to pay for it would come from, the tax increase, and the estimated cost to build and maintain the new hospital.21 10. On November 6, 2022, the Southeast Times published the full text of the ballot proposition in its newspaper.22 11. Approximately one week before the election, voters received a mailing encouraging them to vote against the proposition.23 ¶7 On November 8, 2022, McCurtain County conducted a Special Election alongside the General November Mid-term Election,24 where voters were presented with the proposition for a 2% lodging tax increase to finance and replace the outdated Hospital and with the tax increase effective April 1, 2023. Every precinct voted in favor of the proposal, with 65% of the voters approving it.25 At the same time, McCurtain County residents approved Hochatown's incorporation as a municipality.26 ¶8 On February 1, 2023, the Oklahoma Tax Commission (OTC) published notice that the hotel/lodging tax rates would increase from 3% to 5%, effective April 1, 2023.27 On February 8, 2023, the Hospital filed a Petition for Declaratory Judgment, seeking the trial court's determination that the November 8, 2022, election was valid, and that the lodging tax increase was properly approved. On February 17, 2023, the OTC also sent notices to property owners in McCurtain County advising them of the change in tax rate.28 ¶9 The original plaintiff, Scott Senner, reserved a cabin from the plaintiff/appellant property owner, Vonderosa, (collectively, Vonderosa) located in Hochatown, in McCurtain County, Oklahoma, for April 4-6, 2023, a few days after the lodging tax increases were to become effective. On February 16, 2023, Vonderosa also filed a Petition for Declaratory Judgment and Permanent Injunction in the District Court of McCurtain County, Oklahoma. They sought a determination that: 1) the Lodging Tax passed at the Special November 8, 2022 election be declared void and unenforceable, and 2) the County be enjoined from enforcing the tax. ¶10 On February 23, 2023, the Hospital sought to intervene and consolidate with the Vonderosa lawsuit. The Board also filed a motion to consolidate the two cases. On March 3, 2023, the plaintiffs replaced Senner with another renter, plaintiff/appellant, Michael W. Cathey.29 The two causes were consolidated on March 8, 2023, and both parties filed motions for summary judgment. ¶11 On March 13, 2023, the trial court denied Vonderosa's request for a temporary injunction, and Vonderosa appealed, seeking emergency relief in this Court in Case No. 121,155. On March 28, 2023, this Court temporarily enjoined enforcement of the sales tax increase until the validity of the special election was fully and finally litigated. Before we issued the mandate in Case No. 121,155, the trial court, on June 20, 2023, granted summary judgment in favor of the Hospital. Vonderosa appealed the summary judgment ruling to this Court in case no. 121,465 on July 20, 2023. ¶12 While Case No. 121,465 was pending, we denied rehearing in Case No. 121,155 on June 26, 2023, and issued the mandate on September 13, 2023. This Court determined on November 14, 2023, in a published opinion in cause No. 121,465, Cathey v. Board of County Commissioners, 2023 OK 108, ___ P.3d ___, that the trial court was divested of jurisdiction to enter summary judgment until this Court issued the mandate in Case No. 121,155. We reversed and remanded the matter back to the trial court. Mandate issued in Case No. 121,465 on December 13, 2023. ¶13 On January 9, 2024, with all of the appeal mandates having been issued, the trial court entered a Renewed Journal Entry of Judgment on Cross-Motions for Summary Judgment, again granting summary judgment to the Hospital. On February 8, 2024, Vonderosa appealed, and filed a motion to retain which we granted on February 13, 2024. On February 28, 2024, the Board requested the Court to hold an oral argument because this cause concerns a public issue with immediate ramifications. The cause was assigned on February 29, 2024, for an opinion, with the request for oral argument pending. While we agree that this cause concerns a public issue, we also believe that an oral argument in this cause would be dupliciatous and unnecessary. Accordingly, we deny the request for oral argument. BECAUSE THE COUNTY COMMISSIONERS NEGLECTED TO FOLLOW THE STATUTORY PUBLICATION REQUIREMENTS, THE VOTER-APPROVED LODGING TAX INCREASE IS INVALID. ¶14 Vonderosa argues that the county commissioners neglected to follow the statutory publication requirements, constituting insufficient notice and requiring the voter-approved tax increase to be invalidated. The Board admits that it did not follow the publication requirements, but argues that the measures they did take provided more notice than a newspaper publication and served the same function of informing voters. The Board also contends that Vonderosa should not be allowed to challenge the election after it occurred. Vonderosa contends that if the statutory notice procedures are not followed, it should be allowed to bring an after-election challenge as it did in this cause. We review such challenges de novo. ¶15 Notice is elementary and fundamental in the law. It serves many functions, and in some cases, is a jurisdictional requirement to a court proceeding.30 Notice by publication, at least insofar as real estate sales are concerned, is intended to attract prospective purchasers,31 but notice by publication of a special election is designed primarily to apprise voters that an election which affects their interests is to take place, of what the election concerns, and to allow voters to exercise their sovereign will.32 In other words, it provides the voters with the details of an election, including, but not limited to, the date, location, and the issue(s) to be voted on. ¶16 Notice by publication ensures that even those who cannot be reached through direct communication through personal notices or mail, can become aware of the election and participate to exercise their right to vote. The effectiveness of notice by publication lies in its broad reach and ability to provide a reasonable opportunity for public awareness and involvement. This helps to uphold the principles of transparency and fairness in the electoral process. ¶17 Fundamental and essential to notice, in any context, is that it should apprise interested parties of what the notice concerns, convey the required information, and afford a reasonable time for those interested to participate.33 Walker v. Oak Cliff Volunteer Fire Protection District, 1990 OK 31, 807 P.2d 762, addressed the compliance requirements with statutory notice provisions for an election similar to the one in this cause. In Walker, Logan County held a special election to establish a fire protection district. Prior to the election, the county was statutorily required to publish notice for two weeks in a newspaper of general circulation within the proposed district.34 The county made no attempt to comply with the statutorily required notice. Eighteen months after the election, contestants filed an action in the district court to have the election declared null and void. ¶18 Even though the statutorily mandated notice was not published in a newspaper, a few steps were taken to notify the public of the election, including publication of: an article about the election; advertisements for ballot bids; and Logan County Commission meeting minutes regarding the election. Fire department members also passed out flyers about the election, and the establishment of a fire district was discussed in a social calendar which called for attendance at a fund-raising dance. ¶19 The Walker Court stated that notice requirements for general elections may be relaxed because the public is presumed to know when they are held. However, special elections held without the statutorily prescribed notice should be voided. Why? Because newspaper articles, public comments, or similar publicity cannot substitute for what the Legislature mandated regarding notice, and special elections are not set on a date certain so voters may be unaware that an election is being held at all. Without notice, the electoral process fails and the right to vote is abridged if a person does not have prior notice of an election which will affect their interests. ¶20 Like this cause, the statutory election framework involved in Walker included no provisions for election contests -- either before or after the election.35 Walker held that if there is no statutory provision allowing an election contest involving civil or property rights rather than purely political rights, the controversy may proceed in equity. It also held that laches is not an appropriate defense to the challenge of an election to one who lacks notice of a right to proceed or bring a cause of action. ¶21 In Walker, supra, at ¶16, the Court acknowledged that the County Board did not follow a legal duty, and the contestants tried to challenge the election as soon as they became aware of the voter-approved tax levy by contacting officials to obtain relief, and to attempt a pro se action within six months of the election. Here, there is also no statutory procedure allowing a pre-election challenge to a special election and as Vonderosa's counsel noted at the June 14, 2023, hearing: "When you're talking about four weeks publication notice, you're talking about four weeks right before the election, so I think it would be difficult to realize that publication wasn't happening and file a lawsuit before an election happened."36 Here, Vonderosa brought the lawsuit just over three months after the election was held, one week after the OTC published the new tax rate, and almost two months before the new tax rate was to become effective. Accordingly, we agree with Vonderosa that the rationale of Walker, coupled with the absence of any express statutory process to challenge such an election, does not preclude their challenge in this cause. ¶22 However, to the extent Walker's rationale regarding strict compliance also controls the outcome of this cause, we hesitate for several reasons. First, Walker was a 5-4 decision, and the requirement of strict compliance with notice publication procedures for the special election was a sudden departure from a long line of earlier cases.37 Second, Walker involved a December 14, 1982, special election, but in this cause the special election was held in conjunction with the generally known, date certain, general election. The fact that the voters expressly had to be made aware of the special election date in Walker was significant. ¶23 Third, Walker occurred in 1982, a time when newspapers were heavily relied upon for notice as "the" means to reach people regarding elections. Newspapers also reached many more people than they do today, because newspaper subscriptions are significantly diminished.38 The internet, mass mailings, mass public signage, e-mail, and social media either did not exist, or certainly did not have the presence they have today. ¶24 In McCurtain County, the primary newspaper is the McCurtain Gazette.39 It has a circulation of only 6000, with no paid general subscription for either print or digital subscriptions.40 The newspaper reaches less than 20% of the county population through its circulation.41 Another news outlet that serves the County is the McCurtain County Community News, a public Facebook group created on April 29, 2021, which also provides community news for McCurtain County and has 19,186 members as of May 21, 2024.42 While not every member may live in McCurtain County, if they did, it would cover about 62.58% of the County through its platform. Regardless, it would appear that notice through Facebook is likely equal to, or much more effective than the newspaper. ¶25 Finally, in Walker, supra, only 10% of the voters were estimated to have voted in the election indicating the lack of notice may have significantly impacted the voter's right to participate. Here, of the 16,791 registered voters in McCurtain County, 8,050 participated in the election. Nothing in this cause indicates that the voters' rights to participate in the election were inhibited by the lack of the statutorily required newspaper publication. ¶26 We have also recognized that, despite the contention that there must be strict compliance with notice methods, the use of an alternative method did not render the notice defective if the substituted method performed the same function or served the same purpose as the authorized method. For example, in Osprey L.L.C., v. Kelly-Moore Paint Co. Inc., 1999 OK 50, ¶12, 194 P.2d 984, the lease renewal terms provided that all notices shall be in writing but may be delivered either personally or by mail. The purpose of notice in that instance was to ensure the delivery of the notice and to settle any dispute which might arise between the parties as to whether the notice was received. ¶27 In Osprey, faxing the notice performed the same function and same purposes as the authorized method. Consequently, we held the faxed notice was timely. The fax was acceptable when the delivery method was not exclusive of other methods, and the substituted method served the same purposes as those expressly provided in the lease. This cause does not concern contract renewal terms, but it does involve a substituted method different from what the statute provided. ¶28 The Supreme Court of Connecticut, in Arras v. Regional School District. No. 14, 319 Conn. 245, 125 A.3d 172 (2015) decided a case in which residents brought an action against a town and board of education, contending that the failure to publish warning of a referendum in a newspaper as statutorily required rendered the referendum null and void. Rather than publish a statutorily required "warning" of the measure, proponents engaged in methods such as new releases, newspaper articles, direct mailers to residents, publication on the town website, and even robocalls notifying people of the date, time, and voting place. ¶29 After noting that courts should exercise caution and restraint in deciding whether to overturn an election, the court required: 1) substantial violations of the governing statutes to have occurred; and 2) as a result of those violations, the reliability of election results must be seriously in doubt. The court considered several cases from other jurisdictions requiring strict compliance, but also recognized that those cases predated the advent of television, robocalling, mass public signage, mass mailing, the internet and e-mail. Because the challengers did not present any evidence that the election results would have been different had strict compliance occurred, the court did not invalidate the referendum. ¶30 Despite the persuasive rationale of the Connecticut Supreme Court, we adhere to our holding in Walker, supra, that the Okla. Const., art. 3, § 4 , vests the Oklahoma Legislature with the authority to prescribe the time and manner of holding all elections.43 The Legislature has mandated what constitutes adequate notice by publication.44 The Legislature's use of the word 'shall' connotes a mandatory duty equivalent to a command.45 The statute is not ambiguous. Here, the statutorily required notice was not given. Requiring anything less than strict compliance would result in judicial legislation. We do not sit as a council of revision, empowered to rewrite legislation when the statute is free from ambiguity. We do, however, encourage the legislature to consider re-visiting, and possibly updating publication requirements to be more compatible with today's methods of communication. CONCLUSION ¶31 Title 19 O.S. 2021 §§381-389, enacted in 1910, still governs the procedures for county elections to be submitted to county voters, and they require a proposed measure to be published at least four weeks in some newspaper in the county. It is undisputed that the proposed tax increase proposition was not published, but many other measures to inform the public were taken. Notice by publication provides the voters the details of an election, including, but not limited to, date, location and the issue(s) to be voted on. The Legislature has mandated what constitutes adequate notice by publication. Here, the statutorily required notice was not given. Anything less than strict compliance requires us to invalidate the election. We do, however, encourage the legislature to consider re-visiting, and possibly updating publication requirements to be more compatible with today's methods of communication. APPEAL PREVIOUSLY RETAINED;MOTION FOR ORAL ARGUMENT DENIED;TRIAL COURT REVERSED. ALL JUSTICES CONCUR. FOOTNOTES 1 The proposition language from the 2020 ballot measure read as follows: Shall a proposition of McCurtain County, Oklahoma, enacting a new McCurtain County lodging tax increase, effective April 1, 2021, of Two Percent (2%) in addition to all other lodging taxes levied by McCurtain County, Oklahoma, on gross receipts or gross proceeds derived from the service of furnishing rooms by hotel, apartment hotel, or motel and for the furnishing of any other facility for public lodging, except campsites, within McCurtain County; Oklahoma for a Thirty Year term; the proceeds of said tax to be utilized to provide funds for purchasing sites, erecting, constructing, altering, additions and to and enlargement of the McCurtain County Hospital, and acquiring fixtures and equipment and furnishings and providing for the ongoing maintenance and operations costs related thereto; authorizing the pledging of the lodging tax for debt service on any financing and costs of issuance on the McCurtain County Hospital, if applicable, be approved. 2 Ex. 1, September 1, 2021, Rates and Codes for Sales, Use, and Lodging Tax, Oklahoma Tax Commission, February 16, 2023, Petition for Declaratory Judgment and Permanent Injunction. 3 Ex. 2, February 16, 2023, Petition for Declaratory Judgment and Permanent Injunction. 4 Ex. 3, McCurtain County Proposition No. 3, Election Results, February 16, 2023, Petition for Declaratory Judgment and Permanent Injunction. 5 This time, the Hospital was referred to as the McCurtain Memorial Hospital instead of the McCurtain County Hospital, but it appears, they are one and the same. The resolution provided: A resolution authorizing the call and holding of a special election on November 8, 2022, in McCurtain County, Oklahoma, submitting to the qualified electors of McCurtain County for their approval or rejection the question of imposing a two percent (2%) increase of the existing hotel/lodging tax within McCurtain County, Oklahoma, effective as of April 1, 2023, said increase to end thirty (30) years from the effective date of the tax or at the date of final payment of any debt incurred related thereto, whichever occurs earlier; the two percent (2%) increased proceeds of said to be utilized for the designing, constructing, financing, furnishing, equipping and providing fixtures for the McCurtain Memorial Hospital and for continuing maintenance expenses related to the McCurtain Memorial Hospital; fixing an effective date, authorizing the pledging of the tax for debt service on any financing; authorizing the taking of other actions related to the special election; and declaring an emergency. 6 Ex. 4, August 15, 2022, Minutes and Resolution of Meeting Calling Special Election, February 16, 2023, Petition for Declaratory Judgment and Permanent Injunction. 7 Ex. 4, August 15, 2022, Minutes and Resolution of Meeting Calling Special Election, February 16, 2023, Petition for Declaratory Judgment and Permanent Injunction. Section 4: APPROVAL OF ELECTION PROCLAMATION AND NOTICE provides: The Election Proclamation and Notice of even date, a copy of which is on file with the County Clerk and which is incorporated herein by reference, calling said election is hereby approved in all aspects and the Chairman or Vice Chairman is hereby authorized to execute said Election Proclamation and Notice on behalf of the County, and the County Clerk or Deputy County Clerk is hereby authorized to attest and fix the seal of the County to said Election Proclamation and Notice, and to cause a copy of said Election Proclamation and Notice to be published as required by law, and a copy thereof delivered to the County Election Board. 8 Title 19 O.S. 2021 §388 provides: A. When a county of this state is authorized to submit a proposition for approval by the registered voters of the respective county, whether by special election or otherwise, that will require a ballot title, it shall be the duty, in addition to any other duties required by law, of the county commissioners submitting the measure to prepare and file one copy of the measure with the district attorney of the county. B. The county commissioners submitting the measure shall also submit a suggested ballot title which shall be filed on a separate sheet of paper and shall not be deemed part of the petition. The suggested ballot title: 1. Shall not exceed two hundred words; 2. Shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition; 3. Shall be written on the eighth-grade reading comprehension level; 4. Shall not contain any words which have a special meaning for a particular profession or trade not commonly known to the citizens of this state; 5. Shall not reflect partiality in its composition or contain any argument for or against the measure; 6. In tax-related propositions, the proposition shall detail all known direct and indirect increases and decreases affecting the tax code; 7. In tax-related propositions, the proposition shall use the word 'increase' when an increase in a tax may depend on the passage or failure of the proposition; 8. Shall contain language which clearly states that a 'yes' vote is a vote in favor of the proposition and a "no" vote is a vote against the proposition; and 9. Shall not contain language whereby a 'yes' vote is, in fact, a vote against the proposition and a 'no' vote is, in fact, a vote in favor of the proposition. C. The district attorney of the county for which a measure has been proposed shall review the filing required by subsections A and B of this section for legal correctness. Within five (5) days, the district attorney shall notify, in writing, the county commissioners whether or not the proposed ballot title complies with applicable laws. D. A proposition subject to the provisions of this section shall be published as provided in Section 383 of Title 19 of the Oklahoma Statutes. 9 The District Court in McCurtain County held a hearing on Vonderosa's Motion for Temporary Injunction on March 8, 2023, wherein the Chairman of the Board testified the Board did not publish notice as required by statute. The Chairman testified he was not even aware of the statutory publication requirements at the time. Ex. 4, March 8, 2023, Hearing Transcript, pg. 14, line 16, May 11, 2023, Plaintiffs' Motion for Summary Judgment and Brief in Support. 10 The Oklahoma Election Board Statistics by County as of November 1, 2022, Ex. 5, May 10, 2023, Amended Motion for Summary Judgment. 11 Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 12 Aff. of Dave Smulyan (Owner/operator of KBEL AM/FM Radio, Idabel, Oklahoma, McCurtain County.), Ex. 15, and Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 13 Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 14 Aff. of Kendra Gross, Ex. 7, and Ex. 9 (Articles), May 10, 2023, Amended Motion for Summary Judgment. 15 Aff. of Kendra Gross, Ex. 7, May 10, 2023, Amended Motion for Summary Judgment. 16 Aff. of Kendra Gross, Ex. 7, May 10, 2023, Amended Motion for Summary Judgment. 17 Aff. of Kendra Gross, Ex. 7, May 10, 2023, Amended Motion for Summary Judgment; Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 18 Aff. of Kendra Gross, Ex. 7, May 10, 2023, Amended Motion for Summary Judgment. 19 Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 20 Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 21 Aff. of Brian Whitfield, Ex. 8, May 10, 2023, Amended Motion for Summary Judgment. 22 Proposition, Ex. 17, Southeast Times Newspaper, May 10, 2023, Amended Motion for Summary Judgment. 23 According to the Hospital's May 10, 2023, Amended Motion for Summary Judgment, prior to the election, certain Hochatown incorporators who publically opposed the lodging tax proposition mailed out nearly 8,000 mailers to residents of McCurtain County encouraging them to vote against the proposition. Mailers, Ex. 20, May 10, 2023, Amended Motion for Summary Judgment. 24 The general election held at the same time presented candidates for Governor, United States Congress, State Legislators, County Offices and local initiatives. 25 Exhibit 3, Election Results, and Exhibit 4, Precinct Map, May 10, 2023, Amended Motion for Summary Judgment and Brief in Support. 26 On April 4, 2023, Hochatown, Oklahoma voters approved a town 4% lodging tax with 68 votes in favor and 16 against. Ex. 28, and Ex. 29, May 10, 2023, Amended Motion for Summary Judgment and Brief in Support. 27 Ex. 24, February 1, 2023, Rates and Codes for Sales, Use and Lodging Tax, Oklahoma Tax Commission, May 10, 2023, Amended Motion for Summary Judgment and Brief in Support. 28 Exhibit 25, February 17, 2023, Oklahoma Tax Commission, May 10, 2023, Amended Motion for Summary Judgment and Brief in Support. 29 Exhibit 30, Reservation Conformation for Michael Cathey, May 4,7, 2023, May 10, 2023, Amended Motion for Summary Judgment. 30 In Cate v. Archon Oil Co., 1985 OK 15, ¶10, 695 P.2d 1352, the Court determined that the then existing statutory notice procedures for notice by publication were inadequate when a property owner's name and address are reasonably ascertainable. Similarly, in DuLaney v. Okla. State Department of Health, 1993 OK 113, 868 P.2d 676, held that minimum standards of due process required personal notice to adjacent landowners affected by a cause of action in an administrative proceeding that could impact their legally protected interest. Although the facts of Cate and Dulaney make them distinguishable from this cause, the purpose notice serves is clearly illustrated in both cases. 31 Cate v. Archon Oil Co., see note 30 supra, at ¶7. 32 See, Walker v. Oak Cliff Volunteer Fire Prot. Dist., 1990 OK 31, 807 P.2d 762. 33 See, Cate v. Archon Oil Co., note 30 supra, at ¶7 discussing the elementary and fundamental requirements of due process and notice in any court proceeding. 34 Title 19 O.S. 2021 §901.3, similar to the version in affect in 1990, currently provides: The county clerk shall cause notice of the election to be given by publication once a week for two (2) successive weeks in a newspaper of general circulation in the territory comprising the proposed district. Such notice shall state the time and place of holding the election and set forth the description of the boundaries of the proposed district and its general purpose and intention. Such notice shall require the electors to cast ballots which contain the words: 'Fire Protection District - Yes', and 'Fire Protection District - No', or words equivalent thereto. All persons resident of such proposed district, who are qualified electors in their respective precincts, shall be qualified to vote on such proposition. 35 The Fire Protection Act, 19 O.S. 1981 §901.1 et seq. did not have any language within it regarding election challenges. Its did, however, provide that elections were to be held in accordance with the general election laws. The general election laws 26 O.S. 1981 §8-109 prescribed election contests in any election except those in which candidates were seeking office. This did not prevent this Court from allowing equity to intervene. 36 Transcript, June 14, 2023, pg. 32, lines 1-10. 37 The Court previously looked to whether there was a showing of actual notice or knowledge of an election and whether the failure to comply affected the result of the election. Substantial compliance gave way to strict compliance with the adoption of Walker v. Oak Cliff Volunteer Fire Protection District, 1990 OK 31, 807 P.2d 762. The previous cases include: Mayberry v. Gaddis, 1923 OK 78, ¶6, 213 P. 316 [Substantial compliance with statutory requirements was sufficient, provided there was no evidence that any elector was deprived of the opportunity to vote or that the election result would have been affected.]; Smith v. State, 1921 OK 387, ¶12, 203 P. 1046 [Lack of compliance with statutory requirements does not render a special election void if there is no evidence that electors lacked actual notice or knowledge of the election.]; Lowe v. Consol. Sch. Dist. No. 97, Blaine Cty., 1920 OK 279, ¶4, 91 P. 737 [A special election will not be declared void solely due to technical deficiencies in notice if there's no evidence that voters lacked actual notice and were thereby prevented from participating.]; Ratliff v. State, 1920 OK 273, ¶9, 191 P. 1038, [Failure to provide statutory notice of an election to voters can be excused if there is evidence that all voters had actual notice and participated in the election.]; North v. McMahan, 1910 OK 179, ¶23, 110 P. 1115 [Substantial compliance with statutory requirements is sufficient if deviation did not mislead voters.]; Haskell v. Reigel, 1910 OK 101, ¶9, 108 P. 367 [Statutory requirement for the Governor to issue the proclamation within ten days was directory rather than mandatory.]; McCarty v. Cain, 1910 OK 260, ¶4, 110 P. 653 [Lack of statutory compliance for notice in a special election does not invalidate the election if all electors had actual notice and participated.]; Town of Grove v. Haskell, 1909 OK 236, 104 P. 56 [After an election has occurred, statutory requirements will be treated as directory rather than mandatory for the purpose of determining the validity of the election, unless the non-compliance obstructed the ability of voters to freely cast their votes, prevented ascertainment of the actual result, or was an essential element stated in plain text by the statute.] City of Ardmore v. State, 1909 OK 257, ¶5, 104 P. 913, 916 [A failure to provide statutory notice of a special election does not invalidate the election if it did not prejudice voters.]. 38 See our discussion in Purcell v. Parker, 2020 OK 83, ¶¶20-21, 475 P.3d 834, regarding diminishing circulation of newspapers and the low chance that notice might actually reach interested parties. In Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, ¶13, 732 P.2d 438, the Court noted that publication notice is not reasonably calculated to provide actual notice and that it may be an inadequate method to utilize, especially when compared to such methods as personal service or mail. 39 Title 25 O.S. 2021 §106 sets forth requirements of a newspaper publication to be considered valid, legal notice. It includes certain paid subscription requirements, paid second-class mail, and continuously and uninterrupted publication. The record is unclear as to whether any of the mentioned publications qualify under §106, nor did the trial court make such a determination. In the event there is not an approved publication within a county, publications in a neighboring county may be utilized, even though they would be directed at residents who are not even eligible to vote in the county's election. 40 McCurtain Gazette is also referred to as McCurtain County Gazette News. We may take judicial notice of newspapers on our own initiative or if a party requests it. See, Indep. Sch. Dist. #52 of Oklahoma Cty. v. Hofmeister, 2020 OK 56, ¶¶19-22, 473 P.3d 475; 12 O.S. 2021 §2202. According to an affidavit of Dian Jordan, (presumably a resident of McCurtain County), she personally reviewed all publication of the county which included the McCurtain County Gazette, Southeast Times and Valliant Leader looking for the proposal for the entire month of October and the proposal was not published. Aff. of Dian Jordan, Exhibit 5, February 16, 2023, Plaintiffs' Motion for Temporary Injunction and Brief in Support and Request for Expedited Hearing. McCurtain Daily Gazette, https://www.mondotimes.com/1/world/us/36/5193/15498# google_vignette, (accessed May 21, 2024). 41 As of July 1, 2023, McCurtain County had an estimated population of 30,660. QuickFacts - McCurtain County, Oklahoma, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/mccurtaincountyoklahoma/PST045222 (last visited May 21, 2024). McCurtain Gazette is a newspaper covering "local news, sports, business, politics and community events" with a circulation estimate of 6000. McCurtain Daily Gazette, Mondo Code LLC, https://www.mondotimes.com/1/world/us/36/5193/1549 (last visited on May 21, 2024). As of May 20, 2024, the McCurtain County Gazette had 3,422 likes and 3,416 followers on their unofficial Facebook page, which was created on October 17, 2010. https://facebook.com/pages/McCurtain-Gazette/16225904065366/ (Last visited May 21, 2024). 42 Https://www.facebook.com/groups/382446214454 (Last visited May 21, 2024). Both the Gazette and the Facebook group have been active in delivering the news in regard to special elections. 43 Okla. Const. art. 3, §4 provides: The Legislature shall prescribe the time and manner of holding and conducting all elections, and enact such laws as may be necessary to detect and punish fraud in such elections. The Legislature may provide by law for the registration of electors throughout the state and, when it is so provided, no person shall vote at any election unless he shall have registered according to law. 44 19 O.S. 2021 §383, see page 5, supra. 45 Walker v. Oak Cliff Volunteer Fire Prot. Dist., see note 37, at ¶10; Fuller v. Odom, 1987 OK 64, ¶6, 741 P.2d 449.

c1f99247-1c54-440e-a0bc-de05a53a5156

INDEPENDENT SCHOOL DISTRICT NO. 12 v. STATE

oklahoma

Oklahoma Supreme Court

INDEPENDENT SCHOOL DISTRICT NO. 12 v. STATE2024 OK 39Case Number: 121987Decided: 06/11/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. INDEPENDENT SCHOOL DISTRICT NO. 12 OF OKLAHOMA COUNTY, commonly known as EDMOND PUBLIC SCHOOLS, Petitioner, v. STATE OF OKLAHOMA, ex rel. STATE BOARD OF EDUCATION, RYAN WALTERS, in his capacity as PRESIDENT OF THE STATE BOARD OF EDUCATION and STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, and THE STATE DEPARTMENT OF EDUCATION, Respondents. APPLlCATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF PROHIBITION AND DECLARATORY AND INJUNCTIVE RELIEF ¶0 School district filed an application for the Supreme Court to assume original jurisdiction and issue extraordinary and declaratory relief to prevent enforcement of rules by the State Board of Education, State Department of Education, and Superintendent of Public Instruction. Respondents seek to use the rules in enforcement proceedings brought against the school district before the State Board. We assume original jurisdiction, in part, over the controversy. We deny respondents' motion for oral argument. We hold: (1) State statutes give a local school board power and a type of statutory discretion to supply books for a school library that meet local community standards, and (2) No statute gives the State Board of Education, State Department of Education, and Superintendent of Public Instruction the authority to supervise, examine, and control a local school board's exercise of this discretion when the local school board applies local community standards for books it supplies for a local school library. ORIGINAL JURISDICTION ASSUMED IN PART; WRIT OF PROHIBITION ISSUED; DECLARATORY AND INJUNCTIVE RELIEF DENIED F. Andrew Fugitt and Justin C. Cliburn, The Center of Education Law, P.C., Oklahoma City, Oklahoma, for petitioner. Jason A. Reese and Paul B. Cason, Goodwin/Lewis PLLC, Oklahoma City, Oklahoma, for respondents. Anthony T. Childers, Oklahoma City, Oklahoma, for amicus curiae, Oklahoma State School Boards Association. Andrea R. Kunkel, Oklahoma City, Oklahoma, for amicus curiae, Cooperative Council for Oklahoma School Administration. EDMONDSON, J. ¶1 The Edmond School District, petitioner, sought extraordinary superintending and supervisory relief in this Court to prevent enforcement proceedings before the State School Board. The proceedings were based upon the presence of certain books in a school library maintained by the school district. We assume original jurisdiction on some, but not all, of petitioner's claims. We conclude 70 O.S.2021, §5-117 (A)(3) & (A)(7) give local school boards discretion to place books in a local school library, 70 O.S.Supp.2022, §11-201 gives guidance to local school boards exercising that discretion based upon local community standards, and no state statute creates a supervisory review by State officials to control the local school board's decision-making process. We issue a writ of prohibition to prevent additional enforcement proceedings against the school district when based upon respondents' objection to the presence of certain books in the local school library. I. Controversy ¶2 The State Board of Education (Board or State Board) publicized proposed rules for school library media programs. The rules included prohibitions on pornographic and sexualized content for books and other media. The Board provided a period of time for comments and in March 2023 adopted the rules. The Board cited Okla. Const. Art. XIII, §5,1 and 70 O.S. §3-104 (A)(7) & (20)2 for authority to adopt the rules. ¶3 The Board submitted the new rules to the Governor and the Legislature on March 30, 2023, as new proposed permanent rules for the State Department of Education. In response to a request for an Opinion by the Oklahoma Attorney General, an Opinion issued, Okla. Atty. Gen. Opn. 2023-3 (April 4, 2023), and stated the proposed rules were not based upon a specific grant of legislative authority, such was necessary for the Board to create these rules, and 70 O.S. § 3-104 relied on by the Board could not act as legislative authorization for the Board to create the rules. ¶4 The Legislature passed Senate Joint Resolution 22, and it was signed by the Governor. The Resolution did not expressly state either approval or disapproval of the State Board's new rules. The resolution first states approval of proposed permanent rules "except for" specific rules "submitted by the State Department of Education." Section 1. All proposed permanent rules of Oklahoma state agencies filed on or before April 1, 2023, are hereby approved except for OAC 317:30-3-35; submitted by the Oklahoma Health Care Authority, and OAC 210:10-2-1, 210:10-2-2, 210:10-2-3, 210:10-2-4. 210:35-3-121, 210:35-3-121.1, 210:35-3-126, and 210:35-3-128, submitted by the State Department of Education. Then the resolution expressly states proposed rules of state agencies "are hereby disapproved" and the list of several state agencies does not include the State Department of Education. ¶5 The Governor issued a Declaration on June 23, 2023, and stated the proposed rules for the State Department of Education "were not subject to the joint resolution," and the Governor possessed statutory authorization pursuant to 75 O.S. §308.3, to approve these proposed rules as permanent rules for the State Department of Education. The Governor's Declaration also disapproved the proposed permanent rules for the Oklahoma Heal Care Authority that were listed in the Senate Joint Resolution. ¶6 The State Department of Education sent a letter to the Edmond Public Schools. The letter stated two specific books were in a school library available to students, the content of the two books violated the new rules, and recommended removing the books from the library. Edmond Public Schools requested a hearing before the State Board to appeal whether the books should be removed. The State Board set a date for hearing. ¶7 Two days before the date of the Board's scheduled hearing, Edmond Public Schools filed its request for extraordinary relief in this Court and also sought a stay of the Board's proceedings on the issue whether the two books should be removed from the school library. The Board, through counsel, agreed to stay proceedings until the resolution of the pending matter. ¶8 The arguments raised by petitioner are: (1) The State Board's authority to create rules must be exercised within boundaries set by the Legislature; and (2) No statute gives the State Board powers "to adopt and enforce library censorship." Petitioners assert these first two arguments are sufficient to show violations of Okla. Const. Art. IV, §1 (separation of powers); Art. V, § 1 (legislative authority is vested in the Legislature), Art. XIII, § 1 (Legislature required to establish and maintain public schools) and Art. XIII, §5 (the State Board of Education has powers and duties prescribed by law). Petitioner argues: (3) "[T]he Board assigned itself authority to adopt an enforcement and penalties provision" concerning libraries by a rule in the absence of statutory authority. ¶9 Petitioner also argues: (4) The Governor's actions in approving the rules did not comply with the Oklahoma's Administrative Procedures Act (75 O.S. §§250-323), including 75 O.S. §308.3 in this Act; (5) The approved rules exceed the scope of authority provided in specific statutes concerning the State Board, e.g., 70 O.S. §§ 3-104, 3-104.3, and 3-104.4; and (6) The State Board's rules are inconsistent with the Legislature's creation of 70 O.S. §11-201, and its provision stating library content should "be reflective of the community standards for the population the library media serves,"3 and the enforcement of this standard is for the local school board and not the State Board. ¶10 Respondents' response argues the controversy does not merit the Court assuming original jurisdiction. Respondents urge the circumstances are not extraordinary, no urgency for a decision is present, and this Court should not become a trier of fact concerning facts considered by the State Board in previous proceedings and potential facts concerning potential enforcement of the rules against a local school district. On the issues concerning petitioner's request for extraordinary relief, respondents argue: (1) The Board's rules complied with the Administrative Procedures Act; (2) The Governor could approve the Board's proposed rules because the Legislature neither approved nor disapproved the rules; (3) The subject nature of the rules in within the authority of the State Board to create; (4) The Attorney General's Opinion, 2023 OK AG 3, makes incorrect conclusions of law concerning the State Board's authority for these rules; and (5) The Attorney General's view that the State Board may not use 70 O.S. §3-104 as authority to create rules on various subjects will necessarily invalidate many rules created by the State Board. ¶11 Petitioner's Reply Brief argues assumption of original jurisdiction and issuance of extraordinary relief is proper. Petitioner also argues that respondents' response misrepresents the text of the Administrative Procedures Act, the State Board does not possess "boundless" rule-making authority, and the respondents' response "rewrites history to have the rules conform to a statute [70 O.S.Supp.2022 §11-201] heretofore not cited by any respondent." ¶12 The Oklahoma State School Boards Association and the Cooperative Council for Oklahoma School Administration each appear as an amicus curiae and each filed a statement in support of petitioner. The former amicus curiae argues that respondents give an impermissible and expansive meaning to 70 O.S. §3-104, when the Governor asserts power to create permanent administrative rules without both a review and approval by the Legislature then the Governor exercises an unconstitutional delegation of legislative authority, and the Legislature legally "disapproved" library media rules. The latter amicus curiae argues the rules conflict with 70 O.S. §11-201, and the rules increase the likelihood of litigation against school administrators. Respondents filed separate responses to each of the statements filed by amici curiae, and disagreed with their content.4 II. Assumption of Original Jurisdiction ¶13 Petitioner requests the Court to assume original jurisdiction and grant extraordinary and declaratory relief. Respondents state the Court should assume original jurisdiction and provide them certain relief, or not assume original jurisdiction as an alternative. Their request to assume original jurisdiction is based upon an Opinion by the Attorney General, 2023 OK AG 3, and presents procedural and substantive issues concerning their request for the Court to either assume or not assume original jurisdiction. ¶14 Petitioner asserts the controversy is one of statewide application and importance concerning: (1) The constitutional role of the Legislature with respect to an Executive administrative agency creating a permanent administrative rule with legal force and effect5 by an act of the Governor when the Legislature has not expressly approved or disapproved a rule submitted for the Legislature's review;6 (2) The statutory roles of the Legislature and Governor pursuant to the Oklahoma Administrative Procedures Act, 75 O.S.2021 §§ 250.1-323,7 and (3) The authority of every local school board has in maintaining a school library in accordance with its own local standards pursuant to statutes such as 70 O.S. §11-201 and 70 O.S.2021 §5-117. ¶15 Petitioners also argue: (1) The respondents were notified by the Oklahoma Attorney General prior to their adoption by the Board that the proposed rules were outside the scope of the Board's statutory authority; (2) The Board then received legal advice from its own counsel that the legal opinion from the Oklahoma Attorney General was incorrect and "meaningless;" (3) The Board acted contrary to the advice of the Attorney General and adopted the proposed rules; (4) The Board submitted the rules to the Legislature for approval; (5) The rules were not properly approved by either the Legislature or the Governor; and (6) the Board improperly failed to comply with an Opinion by the Attorney General. ¶16 Respondents present the controversy as a dispute between a single public school district and the State Board of Education concerning whether administrative rules are properly applied to the local school district involving specific library books; and for this reason the issue has no urgent and extraordinary circumstance. ¶17 Respondents' response does conclude with a statement the Court should not assume original jurisdiction. However, their response also states the Court should assume original jurisdiction and determine the challenged rules "were validly promulgated under the established authority of the Board of Education and that 2023 OK AG 3 is not binding on Respondents."8 ¶18 Petitioner requests the Court to exercise supervisory control and issue a writ of prohibition to the Board based upon the Board's proceeding against a school district "to determine if District is in compliance with the Rules and assessing penalties." Prohibition is requested for "barring the Respondents from taking any action based upon the administrative rules...and enjoining the Respondents from enforcing the rules or retaliating against District." ¶19 Respondents state prohibition is "moot" because the Board has agreed to stay a hearing on this matter until completion of this Court proceeding. We disagree with respondent's assessment of mootness. Petitioner's request for prohibition is not merely to prevent a Board from scheduling a meeting, but to prevent the Board from enforcing certain rules with penalties against petitioner based upon evidence taken by the Board at its hearing whenever that meeting occurs. ¶20 Prohibition may issue to prevent the unauthorized exercise of a quasi-judicial power. Quasi-judicial power includes an administrative board or officer empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a judicial nature.9 The "Notice of Joint Stipulation to Stay Proceedings and Motion to Strike Hearing" filed by the opposing parties includes a characterization of the proceeding before the State Board as "enforcement proceedings against the District" and based on the specific rules challenged herein. (Emphasis added). This Notice and accompanying statements by the parties in their filings show the nature of the Board's proceeding as one investigating facts and exercising a quasi-judicial discretion concerning a library maintained by the Edmond School District. ¶21 A petitioner and respondent may join in a request for the court to assume original superintending10 or supervisory jurisdiction.11 Whether the Court exercises supervisory or superintending original jurisdiction is a discretionary decision12 based upon the Court's assessment of several factors,13 and the Court must determine whether original jurisdiction is appropriate regardless to a joint request. Historically, when a respondent requested both assumption of original jurisdiction and affirmative substantive relief, a respondent filed its own application to assume original jurisdiction and petition for an extraordinary writ or declaratory relief.14 A request by the State Board for the Court to grant this affirmative writ relief to respondent and against petitioner was made by a statement in respondent's response and supporting brief, and is not a formal request for assumption of original jurisdiction and declaratory relief.15 ¶22 The Court considers many circumstances when exercising discretion to assume original jurisdiction, and assuming jurisdiction is usually based upon the combination of more than one circumstance. Some examples of these circumstances include the Court assuming jurisdiction to clarify a new statute or a new legal procedure,16 to decide a matter of first impression,17 examine whether the controverted issue is likely to be repeated18 with an adjudication to preserve judicial economy,19 if the controversy involves proper legislative procedure,20 the cost of protracted litigation impacting the public purse making the remedy by protracted litigation economically inadequate,21 and if the issue is publici juris, i.e., a matter affecting the community at large, when combined with a pressing need for a judicial determination based upon the circumstances.22 Of course, the Court may assume jurisdiction to determine if a state board is complying with state statutes or the Oklahoma Constitution,23 but our opinions show our assumption of original jurisdiction is not designed to usurp concurrent jurisdiction of District Courts or the usual and ordinary legal remedies, including appeal and administrative proceedings, that are available and adequate for the controversy.24 The Court does not assume original jurisdiction for extraordinary relief merely because a dispute exists between two state agencies.25 ¶23 An Opinion of the Attorney General may involve a publici juris issue of statewide concern.26 A publici juris issue may arise because of a serious conflict between government agencies.27 Although with the exception of an Attorney General's opinion that an act of the legislature is unconstitutional, an Attorney General's opinion is usually binding upon the state officials whom it affects, and public officers have the duty to follow Attorney General opinions until they are judicially relieved of compliance.28 Respondents appear to recognize that 2023 OK AG 3 conflicts with respondents' rules due to their request for the Court to hold 2023 OK AG 3 as legally incorrect. ¶24 The parties' arguments present the controversy as one of statewide concern involving the State Board's authority for statewide administrative rules contrary to a formal opinion by the Attorney General, the State Board's resistance to this opinion, a challenge to the Board's rules by a local school district based upon its construction of a recently enacted statute specifying legislative procedure and claims based upon the Oklahoma Constitution. Our review of the controversy indicates it must be adjudicated upon a single ground raised by the parties, but with a narrower scope of effect for the adjudication than the adjudication sought by both petitioner and respondent. ¶25 The original jurisdiction of the Supreme Court "shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law." Okla. Const. Art. VII, § 4. The Supreme Court possesses supervisory jurisdiction over inferior State courts and tribunals when they exercise a judicial and quasi-judicial power, and the Court may issue supervisory writs as one aspect of its supervisory jurisdiction.29 ¶26 This dispute involves an issue of first impression involving a subject of statewide concern, that is, whether the State Board of Education, State Department of Education, and State Superintendent of Public Instruction may control the selection of supplemental books and educational materials selected by every local school board when these local boards place materials in their local school libraries. This matter involves a first impression issue for construing a statute and recently created administrative rules. The fiscal purse of a school district should not be harmed by the burden of continued administrative and other legal proceedings if assuming original jurisdiction may avoid the necessity of additional proceedings. We assume original jurisdiction. Okla. Const. Art. VII, §4. We deny respondents' motion for oral argument due to the nature of the arguments presented by all parties in their briefs and the limited scope of original jurisdiction assumed herein. ¶27 The Edmond School District challenges an exercise of a quasi-judicial power. The State Board, the State Department of Education, and the State Superintendent of Public Instruction assert they may supervise in an enforcement proceeding whether a local school board is making decisions in accordance with local community standards. Respondents also appear to be asserting that they, and not the local school board, may determine the proper content for books in a local school district's library, and hold a local school district legally accountable for improper books in the school district's library by means of an enforcement proceeding before the State Board. ¶28 We conclude a local school board possesses statutory authority to maintain and control its local school library, and one aspect of this control includes discretionary authority for providing supplemental educational books and instructional material deemed appropriate by the local school board in accordance with local community standards.30 ¶29 We issue a writ of prohibition to the State Board of Education, State Department of Education, and the State Superintendent of Public Instruction, and direct them, both collectively and individually, to take the necessary steps to dismiss the proceedings brought against the Edmond School District to enforce OAC 210:10-2-1, 210:10-2-2, 210:10-2-3, 210:10-2-4. 210:35-3-121, 210:35-3-121.1, 210:35-3-126, and 210:35-3-128, State Department of Education Rules,31 and direct respondents to dismiss the enforcement proceeding seeking to review the Edmond School District's selection of books the District has placed in one or more of its school libraries. Petitioner's request for declaratory and injunctive relief is denied.32 III. Local School Board and State Respondents ¶30 The Legislature establishes and maintains a system of free public schools wherein all the children of the State may be educated.33 The supervision of instruction in the public schools is vested in the State Board "whose powers and duties shall be prescribed by law."34 The Legislature determines public policy by statutory enactment and this statutory policy is followed by both the State Board of Education, and a local school district pursuant to the extent of supervision possessed by the State Board in accordance with law.35 Statutory authority given to the State Board includes an implied power when the implied power is necessary for the due and efficient exercise of the express statutory power.36 ¶31 Statutory authority given to a local school board includes an implied power when the implied power is necessary for the due and efficient exercise of the express statutory power given by the Legislature to the local board.37 Historically, when a board of education in an independent school district exercised a discretion and acted within the limits of its statutory grant of authority, then the board's discretion could not be interfered with unless there was a clear abuse of discretion.38 Of course, a local school board may not adopt a policy contrary to a state statute.39 ¶32 In a controversy of this nature we must start our analysis with whether the Legislature has expressed its policy by a statute. The Legislature has stated the following A. The board of education of each school district shall have power to:... 3. Maintain and operate a complete public school system of such character as the board of education shall deem best suited to the needs of the school district;... 7. Purchase, construct or rent, and operate and maintain, classrooms, libraries, auditoriums, gymnasiums, stadiums, recreation places and playgrounds, teacherages, school bus garages, laboratories, administration buildings, and other schoolhouses and school buildings, and acquire sites and equipment for the operation of public schools or conversion schools; 70 O.S.2021 §5-117 (A)(3) & (A)(7) (emphasis added). In the context of a statutory grant of authority to the State Board by a different statute we previously explained the term "shall" is "ordinarily interpreted as a command or mandate,"40 and we find it with no less mandatory effect in this instance when applied to the power of a local board of education in the phrase "shall have power." This power expressly includes the exercise of a discretion possessed by the local board to: "maintain and operate . . . as the board of education shall deem best suited to the needs of the school district." This operation and maintenance by the local board of education expressly includes "libraries." This express mandatory power includes implied powers necessary for the due and efficient exercise of the express statutory power. Board of Education of City of Oklahoma City v. Cloudman, supra. ¶33 The Legislature has also provided statutory guidance for this discretion excised by the local board for creation and maintenance of a local school library. As school library media center resources are finite, the library media program shall be reflective of the community standards for the population the library media center serves when acquiring an age-appropriate collection of print materials, nonprint materials, multimedia resources, equipment, and supplies adequate in quality and quantity to meet the needs of students in all areas of the school library media program. 70 O.S.Supp.2022 § 11-201. The language states the resource or materials "shall be reflective of the community standards for the population the library media center serves." The language refers to an exercise of discretion where the decision-maker determines the nature of appropriate content for the particular community the local school library serves. This plain language clearly anticipates local school boards making assessments for library content based upon the needs of their particular students, and recognizes the educational needs for library resources in one community may be different from the needs in another community.41 The purpose of particularized assessments of educational needs for individual communities is accomplished by the local boards of education in those individual communities. ¶34 The State Board, State Dept. of Education, and Superintendent of Public Instruction do not rely on express language in a statute giving them authority over a local school district's library in support of applying their administrative rules. The State Board relies on 70 O.S. §3-104 (A)(7) & (20), which states in part as follows. A. The supervision of the public school system of Oklahoma shall be vested in the State Board of Education and, subject to limitations otherwise provided by law, the State Board of Education shall:... 7. Promulgate rules governing the classification, inspection, supervision, and accrediting of all public nursery, kindergarten, elementary and secondary schools... 20. Have authority and is hereby required to perform all duties necessary to the administration of the public school system in Oklahoma as specified in the Oklahoma School Code; and, in addition thereto, those duties not specifically mentioned herein if not delegated by law to any other agency or official;.... This language does not expressly refer to libraries. It contains a general grant of supervisory authority possessed by the State Board to promulgate rules, and perform all duties necessary to the administration of the public school system in Oklahoma. This same argument appears by their reliance on Okla. Const. Art. XIII, §5, and its designation of the supervisory role of the State Board.42 ¶35 A specific grant of statutory authority to one entity usually controls a general grant of authority to another when the two statutes are in conflict.43 One construction showing no statutory conflict is merely this: Specific statutes stating the powers of a local board do not necessarily conflict with those statutes stating the general supervisory role of the State Board; because a statutory grant of a general supervisory role is not, by itself, a negation or infringement upon a specific grant of power to the supervised entity. For example, the fact that the State Department of Education, through the State Board of Education, has a statutory supervisory role with the Board responsible for apportioning and disbursing annual appropriations to school districts; does not mean the Board by virtue of this supervisory role is insulated from legal liability when it fails to apportion the correct statutory amount to a local school district.44 A general supervisory role, by itself, does not give respondents authority to strip a local school board of its statutory control over a specific matter. ¶36 Respondents appear to recognize this issue and argue in the alternative that their administrative rules may be viewed as fulfilling the legislative intent expressed in 70 O.S.Supp.2022 § 11-201. The Edmond School District objects and argues 70 O.S. §11-201 was not used as authority for promulgating the rules by the Board, and in this proceeding this is the first time respondents have attempted to use this statute as support for the Board's rules. ¶37 Generally, administrative rules are created to carry out and effectuate the Legislature's expressed Will,45 an administrative rule-making authority is not a self-generating or bootstrapping procedure for increasing the agency's statutory power and authority,46 and the Legislature has included several statutes in Title 70 giving express authority to the State Board and Department of Education to create rules or take a specific supervisory role in specific circumstances.47 But 70 O.S. §11-201 contains no direction for the State Board and its requirement for application of local community standards is more consistent with the local school board exercising this power. The State Board appears to argue that its general supervisory role in education matters is itself sufficient authority for the State Board to "supervise" any discretionary decision statutorily given to a local school board with a proceeding before the State Board to examine and correct the local school board's decision in an enforcement proceeding. We disagree. Adams v. Professional Practices Comm'n, supra. ¶38 Respondents' argument is not persuasive. The Legislature stated the view that local control of a discretionary matter by a local school board is preferable. For example, in Ritter v. State, 2022 OK 73, 520 P.3d 370, we quoted from Fair School Finance Council of Oklahoma, Inc. v. State, 1987 OK 114, ¶45, 746 P.2d 1135, and its reliance on 70 O.S.1981 §18-101: "The school system is designed to strengthen and encourage local responsibility for control of public education, with the maximum public autonomy and responsibility remaining at the local level." Ritter, 2022 OK 73, ¶17, 520 P.3d at 380. We recognize the Legislature's long-held public policy. ¶39 The nature of the enforcement proceedings against the Edmond School District is to control the discretion of the District's selection of books placed in a school library when 70 O.S.2021 §5-117 (A)(3) & (A)(7) combined with 70 O.S. §11-201 vest that discretion in a local school board, and no other statute conflicts with this vesting of local discretion. No statute gives the State Board of Education, State Department of Education, and Superintendent of Public Instruction the authority to overrule a local school board's exercise of discretion in applying its local community standards for books in a local school library. IV. Court Declines to Assume Original Jurisdiction on Additional Claims ¶40 The school district also challenges the Governor's approval of the rules. The parties dispute the meaning of language in 75 O.S.2021 §§ 308, 308.3. In 75 O.S.2021 § 308.3, when a rule submitted for legislative review is "not subject to" the Legislature's joint resolution the Governor may approve or disapprove the rule.48 The State Board argues its rules may be approved or disapproved, and while the Board's rules were mentioned in the joint resolution, respondents argue they were not "subject to" the Legislature's resolution because the rules were neither approved nor disapproved. The rules were thereafter approved by the Governor. The school district's argument is that a joint resolution may approve a rule, disapprove a rule, or take any such other direction or mandate regarding the rule deemed necessary (75 O.S.2021 § 308(D)), and for the school district this latter category includes a joint resolution mentioning a rule without a legislative approval or disapproval. The school district argues this latter category fulfills the requirement of a rule being "subject to" a joint resolution and thus outside the scope of the Governor's authority to either approve or disapprove. ¶41 Due to our holding and adjudication issuing a writ herein we need not address this argument and its response.49 We decline to assume original jurisdiction to analyze the school district's claims based upon 75 O.S. §§308, 308.3, and other related statutes for the same reason. ¶42 The school district makes an argument based upon provisions of the Oklahoma Constitution. The Court may decline to decide a constitutional issue presented by the parties if a decision on the issue is not necessary to resolve the controversy.50 We decline to assume original jurisdiction to analyze the school district's constitutional claims. ¶43 The respondents have a statement in their brief requesting our assessment of the scope and effect of Okla. Atty. Gen. Opn. 2023-3 (April 4, 2023). We discussed herein a lack of authorization for the Board in 70 O.S.2021, §3-104 (A)(7) & (20), and Okla. Const. Art. XIII, §5, to create rules that alter the statutory local control given to a local board of education concerning a school library. We do not rely upon the disputed Attorney General Opinion for our holdings herein. We decline to assume original jurisdiction to determine the legal correctness, scope, or effect of Okla. Atty. Gen. Opn. 2023-3 (April 4, 2023). V. Conclusion ¶44 We assume original jurisdiction to decide first impression issues concerning local school board's discretionary statutory control over a school library maintained by the board. ¶45 We conclude a local school board possesses statutory authority to maintain and control its local school library, and one aspect of this control includes discretionary selection for providing supplemental educational books and instructional material deemed appropriate by the local school board in compliance with state statutes. No statute gives the State Board of Education, State Department of Education, and Superintendent of Public Instruction the authority to overrule a local school board's exercise of discretion in applying its local community standards for books in a local school library. ¶46 We conclude the State Board of Education is attempting to exercise unauthorized quasi-judicial authority in enforcement proceedings before the Board that involve the Edmond School District's selection of books for its school library. ¶47 We decline to assume original jurisdiction to: (1) analyze the school district's claims based upon 75 O.S. §§308, 308.3, and related statutes; (2) address constitutional claims raised by petitioner; or (3) determine the legal correctness, scope, or effect of Okla. Atty. Gen. Opn. 2023-3 (April 4, 2023). ¶48 We issue a writ of prohibition to the State Board of Education, State Department of Education, and the State Superintendent of Public Instruction, and direct them, both collectively and individually, to take the necessary steps to dismiss the proceedings brought against the Edmond School District to enforce OAC 210:10-2-1, 210:10-2-2, 210:10-2-3, 210:10-2-4. 210:35-3-121, 210:35-3-121.1, 210:35-3-126, and 210:35-3-128, State Department of Education Rules, and direct respondents to dismiss their enforcement proceeding reviewing the Edmond School District's selection of books the District has placed in one or more of its school libraries. Petitioner's request for declaratory and injunctive relief is denied. ¶49 ALL JUSTICES CONCUR. FOOTNOTES 1 Okla. Const. Art. XIII, §5: The supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law. The Superintendent of Public Instruction shall be President of the Board. Until otherwise provided by law, the Governor, Secretary of State, and Attorney General shall be ex-officio members, and with the Superintendent, compose said Board of Education. 2 70 O.S. 2021 §3-104(A)(7) & (20) state in part: A. The supervision of the public school system of Oklahoma shall be vested in the State Board of Education and, subject to limitations otherwise provided by law, the State Board of Education shall:... 7. Promulgate rules governing the classification, inspection, supervision, and accrediting of all public nursery, kindergarten, elementary and secondary schools... 20. Have authority and is hereby required to perform all duties necessary to the administration of the public school system in Oklahoma as specified in the Oklahoma School Code; and, in addition thereto, those duties not specifically mentioned herein if not delegated by law to any other agency or official;.... 3 70 O.S.Supp.2022, §11-201: As school library media center resources are finite, the library media program shall be reflective of the community standards for the population the library media center serves when acquiring an age-appropriate collection of print materials, nonprint materials, multimedia resources, equipment, and supplies adequate in quality and quantity to meet the needs of students in all areas of the school library media program. 4 On June 6, 2024, AFA Action, Inc. filed a motion for leave to file an amicus curiae brief and as an amicus curiae a motion to associate counsel admitted to practice law in the State of Mississippi. Amicus curiae practice and procedure in an original jurisdiction proceeding is governed by Oklahoma Supreme Court Rules 1.191(h) and 1.12. The disposition of a pending original action shall not be delayed by a motion to appear as amicus curiae. Okla. Sup. Ct. R. 1.12(d)(2). We note the parties completed briefing the matter with briefs filed on March 25, 2024. The motions to appear as amicus curiae and associate counsel are denied without prejudice to further motions during rehearing stage, if any, provided such motions are in compliance with this Court's Rules. 5 Bertrand v. Laura Dester Center, 2013 OK 18, ¶14, 300 P.3d 1188, 1192 ("Administrative rules and court rules are valid expressions of lawmaking powers having the force and effect of law."). 6 Okla. Const. Art. V, §1: The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. Okla. Const. Art. IV, §1: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. 7 75 O.S.2021, § 250: A. This section and Sections 250.1 through 323 of this title shall be known and may be cited as the 'Administrative Procedures Act.' B. All statutes hereinafter enacted and codified as part of the Administrative Procedures Act shall be considered and deemed part of the Administrative Procedures Act. 8 An implied argument concerns whether an administrative rule may grant new and additional authority by mere legislative approval pursuant to a joint resolution if there were no conflicting statutes vesting that new power in a different entity, i.e., if no power or authority was given by statute to local school boards over libraries could the State Board obtain the power by a mere legislative rule-approval process or a Governor's proclamation in the absence of an actual legislative review. The argument is hypothetical for this controversy due to statutes giving a local school board power concerning its school libraries, and the issue need not be addressed. Dank v. Benson, 2000 OK 40, ¶9, 5 P.3d 1088, 1091-92 (Court does not address hypothetical issues when exercising original jurisdiction). 9 Oklahoma State Med. Ass'n v. Corbett, 2021 OK 30, n.2, 489 P.3d 1005, 1006 (quoting Umholtz v. City of Tulsa, 1977 OK 98, ¶6, 565 P.2d 15, 18). 10 Petitioner appears to seek supervisory jurisdiction over an inferior tribunal as well as superintending original jurisdiction over an administrative body attempting to exercise a type of quasi-judicial power outside of the scope of a typical administrative individual proceeding. The controversy is an exercise of an administrative quasi-judicial power with potential penalties for a local school district and within both the Court's supervisory and superintending original jurisdiction. Dutton v. City of Midwest City, 2015 OK 51, ¶27, 353 P.3d 532, 545-46 (discussing distinction between supervisory and superintending jurisdiction). 11 See, e.g., State ex rel. Oklahoma Tax Comm'n v. Mourer, 1979 OK 92, 596 P.2d 882, 884 (parties joined in seeking assumption of original jurisdiction but requested different and contrary substantive relief); Halstead v. McHendry, 1977 OK 131, 566 P.2d 134, 136 (petitioner and respondents joined in requesting assumption of original jurisdiction and requested writ was denied on "the sole issue with which petitioner has presented the Court"); Looney v. Leeper, 1930 OK 455, 292 P. 365, 367 (petitioners and respondents joined in a request for the Court to assume original jurisdiction to determine if a senate joint resolution was in effect). 12 A court's exercise of judicial discretion does not refer to an arbitrary decision by a judicial officer; but rather, a decision based upon reason, all applicable legal principles, and the judicially cognizable facts. Christian v. Gray, 2003 OK 10, ¶ 44, 65 P.3d 591, 609 (an abuse of judicial discretion occurs when a court's order is exercised to an end or purpose not justified by, and clearly against, reason and evidence); Boston v. Buchanan, 2003 OK 114, n.9, 89 P.3d 1034, 1044 (sound judicial discretion exercised by a judge controlling the docket of a court "does not mean an arbitrary control"). 13 See, e.g., Grimes v. City of Oklahoma City, 2002 OK 47, ¶2, 49 P.3d 719, 722 ("only in rare circumstances does this Court assume original jurisdiction to grant a form of declaratory relief"); State ex rel. Okla. Bar Ass'n v. Mothershed, 2011 OK 84, ¶78, 264 P.3d 1197, 1226 (when Court's original jurisdiction in a matter is concurrent with another tribunal, such as a district court, the Court's decision to exercise original jurisdiction is discretionary based upon the Court's assessment of the applicable law and all circumstances); Dutton v. City of Midwest City, 2015 OK 51, ¶27, 353 P.3d 532, 546 ("There is no clear legal right to a writ of superintending control and the issuance of such a writ is in the discretion of the Court."); Miller Dollarhide, P.C. v. Tal, 2006 OK 27, ¶¶8-9, 174 P.3d 559, 563 ("While art. 7 § 4 authorizes us to assume original jurisdiction in certain cases, the exercise of original jurisdiction is purely discretionary."). 14 See, e.g., State ex rel. Robedeaux v. Johnson, 1966 OK 157, 418 P.2d 337 (writ granted on respondent's cross-petition for extraordinary writ); Harden v. Dist. Court of Tulsa Cnty., 1935 OK 1184, 53 P.2d 247 (petitioner's and respondent's applications to assume and petitions for prohibition consolidated to determine proper court exercising jurisdiction with issuance of writ granted to one court and denied to another); cf. Breedlove v. Tulsa County Court, 1935 OK 1101, 58 P.2d 305, 307 (Court determined which of two courts should exercise jurisdiction and did not issue a writ when no request by respondent was made for issuance to the court erroneously exercising jurisdiction, but Supreme Court stated "doubtless" the court erroneously exercising jurisdiction would "take appropriate action to relieve itself of further jurisdiction."). 15 Townsend v. York, 1974 OK 121, 527 P.2d 594, 596 (original jurisdiction extraordinary relief requested in respondent's brief "is not before the Court"). 16 Hines v. Clendenning, 1970 OK 28, 465 P.2d 460, 461 (assumed jurisdiction due to the public nature of the controversy and new statutes); Orthopedic Clinic v. Jennings, 1971 OK 16, 481 P.2d 139, 140 (jurisdiction assumed because new procedural questions were presented involving vacating judgments and appeals). 17 See, e.g., Jackson Cnty. Emergency Med. Serv. Dist. v. Kirkland, 2024 OK 4, ¶11, 543 P.3d 1219, 1222 ("We assumed original jurisdiction to address the first impression issues by opinion."); Vaughan v. Graves, 2012 OK 113, ¶8, 291 P.3d 623, 625 ("Court assumes original jurisdiction to address an important issue of first impression concerning the requirements of registration of foreign judgments"); Kelley v. Kelley, 2007 OK 100, ¶0, 175 P.3d 400, 401-02 ("We assume original jurisdiction to address a single matter of first impression involving parents' fundamental rights"). 18 Sanders v. Followell, 1977 OK 143, 567 P.2d 84, 86 ("The matter presented is publici juris, and of immediate concern to the orderly administration of justice. It is a problem which has the potential for repeated recurrence. Any postponement in clarification of the statutory language will only confuse the issue."). 19 Scruggs v. Edwards, 2007 OK 6, ¶5, 154 P.3d 1257, 1260 ("assuming original jurisdiction serves the interests of judicial economy"). 20 See, e.g., State ex rel. Wiseman v. Oklahoma Bd. of Corrections, 1978 OK 158, 614 P.2d 551, 552 (petitioner sought compliance of Board with bill passed by House and Senate and signed by Governor, with the exception of one provision thereof which the Governor had vetoed), overruled in part, Johnson v. Walters, 1991 OK 107, 819 P.2d 694, 699; Draper v. State, 1980 OK 117, 621 P.2d 1142 (members of the Legislature sought writ involving the constitutionality of an appropriations bill); Regents of State Univ. v. Trapp, 1911 OK 62, 113 P. 910 (bill was presented to Governor less than five days before the adjournment of the Legislature, approval of the whole bill was necessary within 15 days after the Legislature's adjournment in order for bill to become law and Governor was without authority to approve bill in part and disapprove bill in part). 21 Ethics Comm'n v. Keating, 1998 OK 36, ¶ 6, 958 P.2d 1250, explaining, Board of Cnty. Comm'rs of Harmon Cnty. v. Keen, 1937 OK 286, 153 P.2d 483; Atchison T. & S. F. Ry. Co. v. Love, 1911 OK 352, 119 P. 207. 22 Rocket Properties, LLC v. LaFortune, 2022 OK 5, ¶1, 502 P.3d 1112, 1113 ("the Court may assume jurisdiction in a publici juris controversy where there is an urgency and need for a judicial determination") (citing Fent v. Contingency Review Bd., 2007 OK 27, ¶11, 163 P.3d 512); cf. State ex rel. Freeling v. Lyon, 1917 OK 229, 165 P. 419, 420 ("[w]e agree with counsel that this court should not grant the writ unless some interest of the public is involved...By 'publici juris,' we understand, is meant 'of public right.' The word 'public,' in this sense, means "pertaining to the people, or affecting the community at large"). 23 See, e.g., State ex rel. Haning v. Department of Public Welfare, 1952 OK 229, 245 P.2d 452; State ex rel. Poulos v. State Bd. of Equalization, 1982 OK 68, 646 P.2d 1269; State ex rel. Poulos v. State Bd. of Equalization, 1976 OK 41, 552 P.2d 1138; State ex rel. Poulos v. State Bd. of Equalization, 1975 OK 60, 552 P.2d 1134. 24 See, e.g., Keating v. Johnson, 1996 OK 61, ¶11, 918 P.2d 51, 56 ("'The original jurisdiction of the Supreme Court, when concurrent with that of the district court, is intended primarily as a stand by service which it will exercise only when, from the exigencies of the case, great injury will be done by its refusal so to do'...[and when] we have assumed jurisdiction of original actions to rule on the constitutionality of legislative acts, our basis for doing so was a general public need for a speedy determination of the constitutional question") (quoting Kitchens v. McGowen, 1972 OK 140, 503 P.2d 218 (Court Syllabus)) (explanatory phrase added and material omitted); Watchorn Basin Ass'n v. Oklahoma Gas & Elec. Co., 1974 OK 27, 525 P.2d 1357, 1359 ("prohibition being an extraordinary writ, resort to it cannot be had when the ordinary and usual remedies are available, and the writ cannot take the place of, or be substituted for, appeal"); Maree v. Neuwirth, 2016 OK 62, ¶6, 374 P.3d 750, 752 (mandamus will not issue when a party has a plain and adequate remedy in the ordinary course of the law). 25 Ethics Commission v. Keating, 1998 OK 36, ¶ 7, 958 P.2d 1250 (citing Keating v. Johnson, 1996 OK 61, 918 P.2d 51); Breeden v. Nigh, 1968 OK 88, 441 P.2d 981. 26 See, e.g., Draper v. State, 1980 OK 117, 621 P.2d 1142, 1145, (opinions addressing whether an appropriations bill was unconstitutional); Oklahoma Ass'n of Municipal Attorneys v. State, 1978 OK 59, 577 P.2d 1310, 1312, (opinion addressing open meeting laws); State ex rel. York v. Turpen, 1984 OK 26, 681 P.2d 763, 764-765, (opinion involving Police & Firefighters' Retirement & Pension System). 27 Dutton v. City of Midwest City, 2015 OK 51, ¶27, & n.56, 353 P.3d 532, 546 (citing Ethics Comm'n v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073). 28 State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶16, 66 P.3d 432, 441. 29 See, e.g., Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶6, 958 P.2d 128, 136 ("A prerogative writ that may be granted in the exercise of this court's supervisory control over inferior courts, prohibition will lie to arrest unauthorized or excessive use of judicial force."); Macy v. Oklahoma City Sch. Dist. No. 89, 1998 OK 58, ¶13, 961 P.2d 804, 807 ("No exercise of judicial or quasi-judicial power by a state entity in an election controversy is beyond this Court's superintending jurisdiction to review by the appropriate extraordinary writ."); Watchorn Basin Ass'n v. Oklahoma Gas & Elec. Co., 1974 OK 27, 525 P.2d 1357, 1359 (when the challenged action of the agency, commission, or board created by law is "quasi-judicial, rather than ministerial, and the public has an interest, or this Court's refusal to take jurisdiction would result in a practical denial of justice, our power to grant such a[n] [extraordinary] writ [to the agency, board or commission] is beyond question") (quoting Heartsill v. County Election Bd., 1958 OK 138, 326 P.2d 782, 786) (explanatory phrasing added). 30 This proceeding does not involve the State Textbook Committee or its selection of textbooks used by students. See, e.g., 70 O.S.2021, §16-102(A) ("...the State Textbook Committee shall meet to select textbooks for subjects taught in the public schools of the state for grades prekindergarten through twelve...."). 31 The substance of the rules need not be set forth as the parties agree they address sexualized content for books and other media, and that the enforcement proceedings were based upon these rules. 32 We need not address the adequacy of a writ of prohibition as a remedy herein. We do note the presumption that public officials perform their public duties in good faith and we typically withhold equitable mandatory relief in anticipation of this performance. In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, n. 20, 326 P.3d 496, 504. 33 Okla. Const. Art. XIII, § 1: The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated. 34 Okla. Const. Art. XIII, §5 supra at note 1. 35 Western Heights Indep. Sch. Dist. v. State, 2022 OK 79, ¶79, n.79, 518 P.3d 531, 555 (citing Indep. Sch. Dist. # 52 of Okla. Cty. v. Hofmeister, 2020 OK 56, ¶¶29-39, 473 P.3d 475, 489-93; Sch. Dist. No. 25 v. Hodge, 1947 OK 220, 199 Okla. 81, 183 P.2d 575, 583-85). 36 Western Heights Indep. Sch. Dist. v. State, supra note 35, 2022 OK 79, ¶32, 518 P.3d at 543. 37 Bd. of Educ.of City of Okla. City v. Cloudman, 1939 OK 297, 92 P.2d 837, 841 (Concerning a board of education of an independent school district: "The school board has and can exercise those powers that are granted in express words; those fairly implied in or necessarily incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation."). 38 Bd. of Educ. of City of Muskogee v. Baldwin, 1943 OK 200, 137 P.2d 932, 933-34 (explaining Brooks v. Shannon, 1939 OK 34, 86 P.2d 792, and part of its Court Syllabus, "Where Boards of Education in Independent School Districts act within the limits of the power conferred upon them, their discretion cannot be interfered with by injunction, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion; and this general rule applies, although the discretion may be widely exercised."); cf. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194 (generally, an abuse of discretion occurs when discretion is employed on untenable grounds, or for untenable reasons, or is manifestly unreasonable, and an assessment of abuse of discretion is based upon applying evidence, reason, and controlling legal principles). 39 Shellem v. Gruneweld, 2023 OK 26, 535 P.3d 1208. 40 Western Heights Indep. Sch. Dist. v. State, supra note 35, 2022 OK 79, ¶82, 518 P.3d at 557. 41 Fanning v. Brown, 2004 OK 7, ¶10, 85 P.3d 841, 845-46 (words in a statute are to be construed according to their plain and ordinary meaning unless it is clear the legislature intended a different meaning). 42 Okla. Const. Art. XIII, § 5 supra at note 1. 43 Stitt v. Treat, 2024 OK 21, ¶30, 546 P.3d 882, 893. 44 Indep. Sch. Dist. # 52 of Okla. Cty. v. Hofmeister, supra note 35, 2020 OK 56, ¶80, 473 P.3d 509-10 (a local school district has a legal interest in a correct amount of State Aid appropriated and apportioned funds in accordance with state statutes when the State Board in its supervisory statutory role remits an incorrect amount to the local school district). 45 See, e.g., Okla. Pub. Employees Ass'n v. Okla. Dep't of Cent. Servs., 2002 OK 71, ¶31, 55 P.3d 1072, 1085 (a commission possessed constitutional authority to adopt rules with a specific statutory authorization that rules must be necessary to effectuate the statutes). 46 Adams v. Professional Practices Comm'n, 1974 OK 88, 524 P.2d 932, 934 (administrative agency's power to make rules for its own procedures does not include authority to make rules which extend the agency's powers beyond those granted by statutes). 47 See, e.g., 70 O.S.2021 § 3-104.3 ("the State Board of Education shall take action as required by this act"), §3-104.4 ("The State Board of Education shall adopt standards for the accreditation of the public schools"); §9-101.1 (an official inspector designated by the State Board shall verify transportation equipment provided by a local board of education is being maintained and operated in accordance with all the requirements of the rules of the State Board). 48 75 O.S.2021 § 308.3(C) (in part): If any rule received on or before the date established...is not subject to a joint resolution passed by both houses of the Legislature...the Governor may declare any rules...not subject to a joint resolution...to be approved or disapproved...by publishing a single declaration. 49 We need not address hypothetical issues. Dank v. Benson, supra at note 8. 50 Phillips Petroleum Co. v. Corp. Comm'n, 1956 OK 313, 312 P.2d 916, 919 (when adjudication of the constitutional issue is not necessary to resolve the controversy the court may decline to address the constitutionality of a statute); Jones v. Shaw, 1965 OK 67, 441 P.2d 990, 992 (Court would not reach the constitutional question raised in support of granting a writ of mandamus because denial of the writ was proper upon other grounds, and constitutional question should not be entertained in advance of strict necessity for its adjudication).

6cae5643-683a-4644-ab2f-f36a10e80ce7

Hayes v. Penkoski

oklahoma

Oklahoma Supreme Court

HAYES v. PENKOSKI2024 OK 49Case Number: 121158Decided: 06/11/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Sheena Hayes and Morgan Lawrence-Hayes, Petitioners/Appellees,v.Richard Penkoski, Defendant/Appellant. ON APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY HONORABLE LINDA THOMAS, DISTRICT JUDGE ¶0 This appeal originates from a protective order obtained by Petitioners, Sheena Hayes and Morgan Lawrence-Hayes, against Defendant, Richard Penkoski, based primarily on his posts on social media. Defendant appealed and we sua sponte retained the appeal. REVERSED. Joe M. Fears and Richard D. White, Barber & Bartz, Tulsa, Oklahoma, for Appellant, Richard Penkoski. Joshua L. Payton and Malaney L. Sanders, Law Office of Joshua L. Payton, PLLC, Tulsa, Oklahoma, for Appellees, Sheena Hayes and Morgan Lawrence-Hayes. OPINION DARBY, J., ¶1 The question before this Court is whether Defendant, Richard Penkoski, harassed or stalked Petitioners, Sheena Hayes and Morgan Lawrence-Hayes, as required for issuance of a protective order. Because Penkoski did not direct his actions toward any individual person, which the statute requires before the district court may enter an order of protection, we answer in the negative. I. STANDARD OF REVIEW ¶2 Statutory interpretation presents a question of law which we review de novo. Thurston v. State Farm Mut. Auto. Ins. Co., 2020 OK 105, ¶ 2, 478 P.3d 415, 417. A protection order under the Protection from Domestic Abuse Act, 22 O.S.2022, §§ 60--60.18, is reviewed for an abuse of discretion. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550, 554. "Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law." Ibid. "To reverse under an abuse of discretion standard, an appellate court must find the trial court's conclusions and judgment were clearly erroneous, against reason and evidence." Ibid. II. BACKGROUND & PROCEDURAL HISTORY ¶3 Penkoski is a public figure who holds himself out as a pastor, activist, and street preacher. Petitioners are also public figures; Morgan Lawrence-Hayes is President of Oklahomans for Equality and Sheena Hayes is Vice President of Oklahomans for Equality. Hayes is also the outreach committee chair for Petitioners' church, Disciples Christian. ¶4 On September 9, 2022, Penkoski created a post on Facebook. See Pet'rs' Ex. 2. The post said: "This is NOT a church!! This is a satanic recruitment center to groom and indoctrinate children while they pervert the Word of God[.]" Id. The post also contained two photographs, the first was a collaboration of photos of individuals with the overlying text "DISCIPLES CHRISTIAN CHURCH" in bold and below that in italics the text "Happy Pride Month[.]" Id. The photograph cuts off halfway through the second line of text. The second photograph depicts a group of adults and children holding what appears to be photos or pieces of art. No text indicated the identity of the individuals in either photo. Petitioners testified that they and their minor child were pictured in both of the photos. Tr. of Procs. 35:6--22, Feb. 15, 2023. The photographs were available on the church's public page. Tr. of Procs. 57:14--16, 72:25--73:3. ¶5 The next day, on September 10, 2022, Penkoski attended the Bartlesville Pride Event in Bartlesville, Oklahoma. Penkoski allegedly stood on the street corner and yelled into a bullhorn for several hours, shouting slurs across the street toward the children's bouncy house. Penkoski testified that he stayed where the police asked the protesters to assemble during the Pride Event. Penkoski had no direct interaction with Petitioners and Penkoski did not mention Petitioners' names or Petitioners' church by name. ¶6 On November 7, 2022,1 both Petitioners and Penkoski chose to attend and speak at the Bartlesville City Council meeting. At the meeting, Penkoski did not speak directly to the Petitioners, mention them by name, or have any direct interaction with them. No videos or photos of the city council meeting were submitted into evidence. ¶7 On November 11, 2022, Penkoski again posted on Facebook. See Pet'rs' Ex. 4. This post consisted of the text "Liar, liar, pants on fire!!" and a video. Id. The thumbnail of the video in the post showed a woman standing at a lectern with a microphone. The woman had dark colored, long hair which covered most of her face making her virtually unrecognizable in the photo. No text in the post identified the woman in the video. Petitioners testified that the video showed Lawrence-Hayes speaking at the City Council meeting but did not submit a copy of the posted video into evidence. See Tr. of Procs. 16:14--16. ¶8 On November 12, 2022, Penkoski again posted on Facebook. See Pet'rs' Ex. 5. This post had the text "Oklahomans for Eqaulity [sic] in Bartlesville OK caught lying about sexualizing children... See more" and a video. Id. The thumbnail of the video in the post was almost identical to the previous one, showing a woman standing at a lectern with a microphone, with her long, dark hair covering most of her face making her virtually unrecognizable from the photo. No text in the post identified the woman in the video other than that they were associated with Oklahomans for Equality. Petitioners testified that it was also an image of Lawrence-Hayes. Tr. of Procs. 18:7--9. Petitioners did not submit a copy of any video for admission into evidence. ¶9 On November 14, 2022,2 Penkoski again posted on Facebook. See Pet'rs' Ex. 3. This post stated: I now pronounce you an abomination!! God is not in this, matter of fact God hates the perversion of marriage. God created married [sic] for 1 man and 1 woman ONLY!! This synagogue for satan operates in Bartlesville OK. You should see what they think is approbation [sic] for children. Matthew 18:6, "but whoever causes one of these little ones who believe in Me to stumble, it would be better for him to have a heavy millstone hung around his neck, and to be drowned in the depth of the sea." Since there [sic] triggered over that verse, I wonder how they feel about Romans 1:32, "and although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them. Id. Below the text, Petitioners' exhibit of the Facebook post shows one black and white photograph which shows two people from the back. One is wearing a dark suit, and the other is wearing a white dress and veil. Also visible in the photo are flowers and lit candles. There are no other adults or children shown. No text in the post identified the two individuals in the photo, or the name of the referenced entity in the post. Petitioners testified that this Facebook post contained two photographs obtained from their private Facebook page and included Petitioners and their minor child in both photos, but no child was visible in the one photo in the submitted exhibit. See Tr. of Procs. 15:8--9. Furthermore, Penkoski and Lawrence-Hayes both testified that all of the photographs Penkoski posted were available on the church's public Facebook page. Tr. of Procs. 57:14--16, 72:25--73:3. ¶10 On November 15, 2022, Petitioners contacted Bartlesville police. On November 22, 2022, Petitioners filed their Petition for Protective Order. Petition, PO-2022-284 (Washington Cty. Nov. 22, 2022); ROA 1. The petition described the time line of incidents as occurring between September through November 2022: The defendant first began his harassing behavior in the week prior to Bartlesville Pride. Before the event he shared pictures of parents & children of Disciples Christian Church & called us (the photo included our family) groomers & pedophiles. He then came to Bartlesville Pride as a protestor & stood next to the children's area shouting vulgar & obscene things. In November, he took a photo from my personal facebook & shared it to his page stating bible verses that imply I should be killed for being gay. He showed up at the November City Council meeting speaking out with more bible verses used to justify harming or killing the LGBT community. Following the meeting, he again shared a video of my statements calling me a liar. We have never been in contact with Mr. Penkoski, but he has repeatedly targeted our family with violent threats via social media, and he is now coming to city meetings in a town he does not live in. Id., at 3--4. Attached to the petition was a police report which stated Penkoski's offense was committing an obscene/threatening/harassing phone call (intimidation) pursuant to title 21, section 1172.3 Id., at 9. The police narrative stated: On 11/15/22, I was contacted by the President of Oklahomans for Equality, Morgan Lawrence, in regard to harassment. Mrs. Lawrence is married to the Vice President, Sheena Hayes. Mrs. Lawrence also has a son [omitted]. On 09/10/22, Bartlesville held an outdoor pride event at Unity Square (300 SE Adams). Due to overwhelming protests and threats, Bartlesville Police Department had to take extra security measures at this event. During the protest, Mr. Rich Penkoski is seen on multiple videos using a blowhorn and saying vulgar statements and obscenities. He is also seen holding a sign that says G-Got A-Aids Y-Yet. Mr. Penkoski would say "homosexuals rape dogs",[sic] "raping anus" and they are all "pedophiles." These sayings were confirmed by Officer Lemmons who was working the event as extra security. Mr. Penkoski can be identified as the one making these comments with the blowhorn near the children's play area of the Pride Event. Mrs. Lawrence informed me, that a Facebook post was made after the pride event. The post was removed by Facebook, but she was able to provide me with screenshots. Those have been uploaded to this case. The post was made by Mr. Penkoski and stated the following: [quotes Facebook post laid out in paragraph 9 supra]. Mr. Penkoski then attached two photos of Mrs. Lawrence, Mrs. Hayes, and [minor child] at their wedding day ceremony. Mr. Penkoski is believed to be saying a millstone should be hung around "their" neck and to be drowned in the depth of the sea. Five days ago, on 11/11/22, Mr. Penkoski made another post in regard to Mrs. Lawrence. The post stated "Liar, liar, pants on fire!!" Mr. Penkoski then attaches a video from the city council meeting in which Mrs. Lawrence is speaking in regard to the Pride Event and a petition involving the banning of adult entertainment in public spaces. Mr. Penkoski shows 38 seconds of Mrs. Lawrence speaking at the city council meeting and then edits the video to show portions of the drag queen performance on 9/10/22 at the Pride event. At the 1:12 mark, Mr. Penkoski cuts back to Mrs. Lawrence giving her speech. He allows this to play for about 18 seconds before again editing the video back to portions of the drag queen performance. While these edits are going on, Mr. Penkoski uses Mrs. Lawrence's words and altered voice over the playing of the performances. The total length of the video is 2:06. . . . . Petition, at 10--11. The district court issued an emergency protective order the same day. Emer. Order of Prot., Nov. 22, 2022; ROA 13--16. ¶11 On December 15, 2022, Petitioners had Penkoski served with the emergency protective order while Penkoski was live-streaming at a protest in Tulsa, Oklahoma. Allegedly, the police officer stated both of Petitioners' names on the live-stream while serving Penkoski. Afterward, Penkoski posted the live-stream on social media for at least five days. Petitioners, however, did not provide a copy of the live-stream video to the court or offer the video into evidence.4 ¶12 On February 15, 2023, the Washington County District Court held the protective order hearing and issued a permanent order of protection for five years. Order of Prot., Feb. 15, 2023; Tr. of Procs. 84:11--13. The order prohibited Penkoski from posting any pictures, images, videos, or any likenesses of any kind of the Petitioners or their minor child on any social media; making reference to, mentioning, printing, or otherwise publishing their names on social media; and required that Penkoski must stay 500 feet away from Petitioners and minor child, in addition to standard protective order restrictions. Tr. of Procs. 84--88. ¶13 Penkoski timely appealed from the order and this Court sua sponte retained the appeal. III. ANALYSIS ¶14 The Protection from Domestic Abuse Act, 22 O.S. §§ 60--60.18, affords relief to victims of domestic abuse, stalking, harassment, rape, or crime. 22 O.S.2022, § 60.2(A). The Petitioners alleged that Penkoski stalked and harassed them, and the district court agreed when issuing its protective order. Both harassment and stalking are defined in the Act. ¶15 Pursuant to title 22, section 60.1(5), "Harassment" means a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person which seriously alarms or annoys the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial distress to the person. "Harassment" shall include, but not be limited to, harassing or obscene telephone calls in violation of Section 1172 of Title 21 of the Oklahoma Statutes and fear of death or bodily injury; . . . . 22 O.S.2022, § 60.1(5).5 This definition clearly requires the "harassing" behavior to take place between family or household members, or individuals who are or have been involved in a dating relationship. Petitioners and Penkoski in this case have no personal relationship. Penkoski thus has not committed harassment under this statutory definition. We need not look at the rest of the definition once one mandatory element has failed. The district court's ruling that Penkoski harassed the Petitioners was contrary to law. The district court abused its discretion when it found that Penkoski harassed the Petitioners. ¶16 Stalking under the act is defined as: the willful, malicious, and repeated following or harassment of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed or molested. Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued. Unconsented contact or course of conduct includes, but is not limited to: . . . . 22 O.S.2022, § 60.1(10).6 This is followed by a list of applicable actions within the statute.7 ¶17 Penkoski first argues that his actions did not meet the requirements of stalking because the Act applies to protect individuals, not organizations, noting that the statute addresses "following or harassment of a person." See id. (emphasis added). Penkoski asserts that he has never contacted Petitioners, or their family, household members, employers, coworkers, or friends. Penkoski notes that his Facebook posts were only directed towards Oklahomans for Equality and Disciples Christian Church, not Petitioners as individuals. Penkoski also argues that he took no repeated action or course of conduct toward Petitioners, because he never named either of Petitioners in any of his posts. Penkoski notes that the police officer did state Petitioners' names during Penkoski's live stream. But Penkoski noted that the Petitioners' names in this action were already a matter of public record. ¶18 Penkoski also asserts that he made no actual threats of, or calls for, violence against anybody and noted that Petitioners admitted that Penkoksi's posts did not make actual threats or calls for violence. Penkoski argues that his words were not "malicious." Penkoski notes that the Act does not contain a definition of malicious, so he looked to the ordinary meaning provided in Black's Law Dictionary, which requires the intentional doing of a wrongful act without just cause or excuse. Penkoski notes that his posts were made under the constitutionally-protected legitimate purpose of influencing public opinion on a prominent issue and were thus not malicious. Finally, Penkoski argues that the district court's application of the Act to his conduct impermissibly infringes on his constitutional right to speak freely and publicly on a matter of public interest. ¶19 On appeal, Petitioners argue that Penkoski "admitted he used social media posts as his only method of contacting and communicating with the Petitioners." Ans. Br., at 22. But Penkoski's actual testimony was: They alleged harassment and stalking, But by those two definitions, harassment requires some kind of communication to them, and they've testified I have never communicated with them or to them, ever. I have never sent them a message. I have never called them. I have never communicated with them in any way, shape, or form other than to make my posts on my public platforms. Again, I have never even been in the same room with them with the exception of the city council meeting where I spoke, didn't address them. Tr. of Procs. 75:21--76:5 (emphasis added). This testimony is not an admission that Penkoski used social media to contact and communicate with Petitioners. ¶20 Petitioners also argue that Penkoski's conduct was a true threat, excluded from any first amendment protection and Penkoski's conduct meets the elements of stalking. Petitioners note that the definition of stalking requires "willful, malicious, and repeated following or harassment of a person by an adult . . . in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested." Petitioners call the Court's attention to the district court's finding that Penkoski's conduct was willful and malicious and that he repeated his behavior over and over until it became harassing. ¶21 At the end of the hearing, the district court said: Okay. At this time, I have a few comments that I want to make and then I will give my ruling. Mr. Penkoski, you are correct, we all have a constitutional right to free speech; however, we do not have a constitutional right to step over certain and specific boundaries in using that speech to target certain and specific individuals. You also said that you believe that this protective order was used to limit your ability to preach the Bible. And, again, you have that constitutional right to preach the Bible and use any speech that you so want to use as long as it doesn't target individual people. You also said that you've never met and the testimony was from both the defendants as well -- excuse me -- plaintiffs as well, that you've never met or been in the same room other than the city council conference room. You've never met them. You've never interacted with them personally; however, stalking and harassment is not limited to just personal contact. With respect to your comments regarding utilizing their public pictures, nothing prevents you from using pictures that are public so long as you don't use them in a manner that is considered to be harassing or stalking. At this time, I will find that you, Mr. Penkoski, have, in a knowing and willful manner, conducted a pattern of conduct which a reasonable person would believe to be harassment and would therefore suffer substantial emotional distress. And it has actually caused substantial emotional distress to the plaintiffs in this case. While you may not have had personal contact with them, you have used social media, which is arguably even more egregious because it certainly goes out to -- can go out to hundreds of thousands of people in an instant. And our behaviors of targeting them, not what you've said with respect to your belief in reference to the Bible, but when you target those to specific people and you call them out by name, that changes the whole picture. Also, with respect to stalking, your behavior is willful, it's malicious, and it's repeated over and over and over to the extent that it does become harassing. And you've done that in a manner that would cause any reasonable person to feel frightened, intimidated, threatened, harassed, as they testified to, just scared for their own safety and the safety of their child. You have conducted yourself in a manner that, over a period of time, it's not just one thing, it's not just that you posted it one time or that you made specific references to them personally and their family personally. You did it over a period of time without their consent, obviously, and in a manner that just completely disregards their rights to feel safe in the community. So, at this time, I am going to grant the permanent protective order. Tr. of Procs. 82:7--84:12 (emphasis added). IV. CONCLUSION ¶22 The definition of stalking requires "willful, malicious, and repeated following or harassment of a person." Section 60.1(10), both prior to November 1, 2022, and as amended effective November 1, 2022, gives a list of examples of uninvited contact or course of conduct which would be considered stalking. Every example concerns contact or conduct toward an "individual." Penkoski's actions were not directed toward an individual person, but rather were public Facebook posts that named two organizations, not individuals. Penkoski spoke neither of Petitioners' names at the parade or the city council meeting. Penkoski did not send electronic communications to Petitioners, or contact them directly by any means, including directing a message, comment, or other content toward them. Penkoski did not photograph, videotape, or otherwise record Petitioners' activities. Penkoski created Facebook posts that included photos or videos he obtained from other sources which, while they depicted one or both of Petitioners, did not name either Petitioner or direct his message toward either Petitioner. The district court's decision was clearly against the evidence, and based on the court's mistaken finding that Penkoski "made specific references to [Petitioners] personally and their family personally" and that he targeted his posts to specific people and "called them out by name." The district court abused its discretion when it found that Penkoski directed his posts or comments toward the Petitioners. ¶23 We need not address all of Penkoski's or Petitioners' arguments, including Penkoski's First Amendment arguments, because regardless of protected speech status, the district court abused its discretion in issuing the order of protection. ¶24 We find that the district court abused its discretion when it issued an Order of Protection against Penkoski for his actions in this case. The district court's order of protection is reversed and the order of protection is vacated. REVERSED. Kane, C.J., Rowe, V.C.J., Winchester, Darby, and Kuehn, JJ., concurring; Kauger, Edmondson, Combs, and Gurich (by separate writing), JJ., concurring in part, dissenting in part. FOOTNOTES 1 The date of this meeting is not in the record nor did any party testify to it. In their Petition for the Protective Order, Petitioners alleged the meeting in question was the November City Council meeting. Petition, PO-2022-284 (Washington Cty. Nov. 22, 2022); ROA Instrument 1, 3. We may take judicial notice of certain facts. See 12 O.S.2011, §§ 2202, 2203(C). We take note of public records that the November 2022 Bartlesville City Council meeting occurred on November 7, 2022. See City of Bartlesville, Meeting Agendas, Packets and Minutes, (Apr. 4, 2024, 1:11pm), https://www.cityofbartlesville.org/city-government/city-council/meeting-agendas/. 2 The screenshot of this Facebook post does not include a date. Counsel stated he believed it was from September. Tr. of Procs. 15:15. The police report seems to indicate the post occurred prior to the city council meeting. But Lawrence-Hayes testified that the Facebook post with the photo of the church members and the picture of the wedding were both posted on November 14, 2022. Tr. of Procs. 56:1--14. We are not ruling on the date of the Facebook post, but rather simply using the most specific alleged date for purposes of analysis in the opinion. 3 Title 21, section 1172 states: A. It shall be unlawful for a person who, by means of a telecommunication or other electronic communication device, willfully either: 1. Makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent; 2. Makes a telecommunication or other electronic communication including text, sound or images with intent to terrify, intimidate or harass, or threaten to inflict injury or physical harm to any person or property of that person; 3. Makes a telecommunication or other electronic communication, whether or not conversation ensues, with intent to put the party called in fear of physical harm or death; 4. Makes a telecommunication or other electronic communication, including text, sound or images whether or not conversation ensues, without disclosing the identity of the person making the call or communication and with intent to annoy, abuse, threaten, or harass any person at the called number; 5. Knowingly permits any telecommunication or other electronic communication under the control of the person to be used for any purpose prohibited by this section; and 6. In conspiracy or concerted action with other persons, makes repeated calls or electronic communications or simultaneous calls or electronic communications solely to harass any person at the called number(s). B. As used in this section, "telecommunication" and "electronic communication" mean any type of telephonic, electronic or radio communications, or transmission of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, cable, radio, electromagnetic, photoelectronic or photo-optical system or the creation, display, management, storage, processing, transmission or distribution of images, text, voice, video or data by wire, cable or wireless means, including the Internet. The term includes: 1. A communication initiated by electronic mail, instant message, network call, or facsimile machine including text, sound or images; 2. A communication made to a pager; or 3. A communication including text, sound or images posted to a social media or other public media source. C. Use of a telephone or other electronic communications facility under this section shall include all use made of such a facility between the points of origin and reception. Any offense under this section is a continuing offense and shall be deemed to have been committed at either the place of origin or the place of reception. D. Except as provided in subsection E of this section, any person who is convicted of the provisions of subsection A of this section, shall be guilty of a misdemeanor. E. Any person who is convicted of a second offense under this section shall be guilty of a felony. 21 O.S. Supp. 2019, § 1172. 4 On appeal, Petitioners have alleged that Penkoski made an active choice to publish the live-stream after its completion in order to publish Petitioner's names. This argument was not raised at the district court and this Court cannot take judicial notice regarding methods and requirements of posting Facebook live videos. 5 This definition is unchanged from the May 11, 2022 version of the statute to the November 1, 2022 version. 6 This part of the stalking definition is unchanged from the May 11, 2022 version of the statute to the November 1, 2022 version. 7 The list of applicable actions within the stalking definition prior to November 1, 2022, states: Unconsented contact or course of conduct includes, but is not limited to: a. following or appearing within the sight of that individual, b. approaching or confronting that individual in a public place or on private property, c. appearing at the workplace or residence of that individual, d. entering onto or remaining on property owned, leased or occupied by that individual, e. contacting that individual by telephone, f. sending mail or electronic communications to that individual, or g. placing an object on, or delivering an object to, property owned, leased or occupied by that individual; . . . . 22 O.S.2022, § 60.1(10) (as amended by 2022 Okla. Sess. Laws, ch. 246, § 2 (effective May 11, 2022)). Section 60.1(10), effective November 1, 2022, states: Unconsented contact or course of conduct includes, but is not limited to: a. maintaining a visual or physical proximity to the individual, b. approaching or confronting that individual in a public place or on private property, c. appearing at the workplace of the individual or contacting the employer or coworkers of the individual, d. appearing at the residence of the individual or contacting the neighbors of the individual, e. entering onto or remaining on property owned, leased or occupied by the individual, f. contacting the individual by telephone, text message, electronic message, electronic mail, or other means of electronic communication or causing the telephone or electronic device of the individual or the telephone or electronic device of any other person to ring or generate notifications repeatedly or continuously, regardless of whether a conversation ensues, g. photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the individual. This subparagraph applies regardless of where the act occurs, h. sending any physical or electronic material or contacting the individual by any means, including any message, comment, or other content posted on any Internet site or web application, i. sending to a family member or member of the household of the individual, or any current or former employer of the individual, or any current or former coworker of the individual, or any friend of the individual, any physical or electronic material or contacting such person by any means, including any message, comment, or other content posted on any Internet site or web application, for the purpose of obtaining information about, disseminating information about, or communicating with the individual, j. placing an object on, or delivering an object to, property owned, leased or occupied by the individual, k. delivering an object to a family member or member of the household of the individual, or an employer, coworker, or friend of the individual, or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the individual, or l. causing a person to engage in any of the acts described in subparagraphs a through k of this paragraph; . . . . 22 O.S.2022, § 60.1(9) (as amended by 2022 Okla. Sess. Laws, ch. 318, § 5 (effective Nov. 1, 2022)). Gurich, J., concurring in part and dissenting in part: ¶1 The majority correctly points out that Penkoski's conduct, as a matter of law, did not constitute harassment. However, the record in this case contained sufficient evidence to support the decision of the trial court finding Richard Penkoski engaged in behavior which met the statutory definition of "stalking," as codified in the Protection from Domestic Abuse Act, 22 O.S. 2022, § 60.1(9).1 ¶2 Although some of Penkoski's commentary appeared to be directed toward Oklahomans for Equality, in truth, his oppressive and intimidating conduct was directed toward Morgan Lawrence-Hayes and Sheena Hayes (Appellees) as individuals. It is important to note that the trial court only considered issuing a protective order to the Appellees as individuals; the judge did not consider an order on behalf of the organization or community at-large. Judge Thomas specifically explained, "I only have the jurisdiction at this point to deal with whatever individual harm you might be referring to." As such, I respectfully dissent from that portion of the majority opinion which concludes the evidence did not establish stalking of the Appellees in their individual capacities. ¶3 Title 22 O.S. Supp. 2023, § 60.2(A) provides that a "victim of domestic abuse, a victim of stalking, a victim of harassment...or any adult victim of a crime may seek relief under the provisions of the Protection from Domestic Abuse Act." Penkoski's conduct, as a matter of law, does not meet the statutory definition of harassment.2 However, the evidence supports a finding that he engaged in stalking of Appellees. First, the definition of stalking reads as follows: 9. "Stalking" means the willful, malicious, and repeated following or harassment3 of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed or molested. Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued. Unconsented contact or course of conduct includes, but is not limited to: a. maintaining a visual or physical proximity to the individual, b. approaching or confronting that individual in a public place or on private property, c. appearing at the workplace of the individual or contacting the employer or coworkers of the individual, d. appearing at the residence of the individual or contacting the neighbors of the individual, e. entering onto or remaining on property owned, leased or occupied by the individual, f. contacting the individual by telephone, text message, electronic message, electronic mail, or other means of electronic communication or causing the telephone or electronic device of the individual or the telephone or electronic device of any other person to ring or generate notifications repeatedly or continuously, regardless of whether a conversation ensues, g. photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the individual. This subparagraph applies regardless of where the act occurs, h. sending any physical or electronic material or contacting the individual by any means, including any message, comment, or other content posted on any Internet site or web application, i. sending to a family member or member of the household of the individual, or any current or former employer of the individual, or any current or former coworker of the individual, or any friend of the individual, any physical or electronic material or contacting such person by any means, including any message, comment, or other content posted on any Internet site or web application, for the purpose of obtaining information about, disseminating information about, or communicating with the individual, j. placing an object on, or delivering an object to, property owned, leased or occupied by the individual, k. delivering an object to a family member or member of the household of the individual, or an employer, coworker, or friend of the individual, or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the individual, or l. causing a person to engage in any of the acts described in subparagraphs a through k of this paragraph; and 22 O.S. Supp. 2022, § 60.1(9) (emphasis added).4 Reading the plain text of this section, it is clear Penkoski's conduct satisfied the statutory definition of stalking. ¶4 First, his September 9, 2022, post clearly displayed an image which included both Appellees and their child. Significantly, the post contained a caption which effectively accused those people in the Disciples Christian Church group photo (which included Appellees), of creating a "satanic recruitment center to groom and indoctrinate children. . ." Use of this photograph, along with the accompanying hate speech, directly affected the Appellees. Although Appellees were not named, the post's impact was not limited to the church or any other organization. On November 11 and 12, 2022, Penkoski made two publications which included an image of Lawrence-Hayes, taken from the Bartlesville city council meeting. Therein, Penkoski accused Lawrence-Hayes of lying about "sexualizing children."5 A Facebook publication made by Penkoski on November 14, 2022, showed both Appellees exchanging vows during their wedding ceremony. It also contained two bible verses which referenced death to individuals acting contrary to certain biblical teachings.6 The photograph was taken from Lawrence's personal Facebook page and was utilized by Penkoski without permission. Both Appellees testified they considered the post to be threatening and that they perceived the biblical verses as a call for their murder. In addition, Penkoski posted videos of Lawrence-Hayes speaking at the Bartlesville City Council meeting to a social media platform. ¶5 Further, Penkoski made physical appearances in locations he knew the Appellees would be present. He attended an LBGTQ-plus event in Bartlesville and positioned himself (with a group of other men) directly across from Appellees. During this episode, Penkoski used a bullhorn and yelled obscenities toward Appellees.7 Subsequently, Penkoski appeared at a Bartlesville City Council meeting to confront the Appellees about his hostile conduct at the Bartlesville Pride festival. ¶6 Penkoski was served with the emergency protective order on December 15, 2022. At the time, he was livestreaming a video to social media. When the paperwork was handed to Penkoski, the Tulsa Police Officer identified the Appellees as the petitioners. Penkoski subsequently disseminated the video with Appellees' names via his social media account(s), purposefully making Appellees' names available to his followers. This disclosure was intentionally done to harass, intimidate and torment the Appellees even more. The video post compounded Appellees' fears and brought about a flood of abhorrent messages from Penkoski's social media followers. ¶7 Penkoski's social media posts and intimidation tactics were not isolated incidents; rather they were an ongoing "course of conduct" designed to intimidate/harass Appellees and potentially incite violence toward the couple. He even testified that the Appellees, as parties to a same-sex relationship, were "worthy of death," according to his interpretation of the Bible. Considering the testimony and exhibits, it is clear Penkoski's actions were directed toward Appellees as individuals. In addition, the record supports the trial court's legal determination that Penkoski's repeated bullying (both in person and via social media) and incendiary rhetoric toward Appellees satisfied the definition of stalking. Because the trial judge did not abuse her discretion, I would affirm the finding that Penkoski engaged in stalking of Appellees.8 FOOTNOTES 1 22 O.S. § 60.1 was amended twice in 2022. In the first amendment, the definition of stalking is found in paragraph 10, effective May 11, 2022. The second amendment, effective November 1, 2022, renumbered the stalking definition to paragraph 9 and expanded the definition. 2 22 O.S.2022, § 60.1(5) provides in relevant part: "'Harassment' means a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person which seriously alarms or annoys the person, and which serves no legitimate purpose." 3 Harassment is defined as "[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation." Harassment, Black's Law Dictionary (11th ed. 2019). Although the legislature defined harassment in section 60.1(5), it seems paradoxical to include that definition within the definition of stalking; to do so would effectively render this portion of the stalking definition redundant and superfluous. 4 As noted in the majority opinion, section 60.1 was amended during the 2022 Oklahoma Legislative Session and became effective on November 1, 2022. Additional examples were provided in the amended version of the statute; however, they are no less applicable as the previous iteration of section 60.1 specifically noted that the illustrations offered were not exhaustive. 5 Penkoski's posts included photos of the women and referenced "Oklahomans for Eqaulity [sic]." Petitioner's Exs. 4 & 5. Both Appellees were active leaders in Oklahomans for Equality - Bartlesville, which is a local organization promoting rights for the LBGTQ-plus community. Lawrence-Hayes served as the president of the organization, and Hayes was the vice-president. In addition, Hayes acted as the outreach chairperson for Disciples Christian Church, which is a Bartlesville congregation promoting equality and diversity. As members of the LBGTQ-plus community, and because of their leadership status with the aforementioned entities, Appellees became the direct targets of Penkoski's persecution and terrorizing conduct. 6 Penkoski referred to Matthew 18:6, which he quoted as, "if anyone causes one of these little ones who believe in me to stumble, it would be better for him to have a heavy millstone hung around his neck, and to be drowned in the depth of the sea." He also referred to Romans 1:32, which he recited as follows, "and although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them." Petitioner's Ex. 3. 7 Testimony of Sheena Hayes, Tr., 30, Feb. 15, 2023. 8 By affirming the trial court's finding of stalking, the Court would be required to engage in an analysis of the issues on appeal relating to the First Amendment. The majority opinion has avoided these difficult questions by holding Penkoski's actions and hate-filled speech were directed toward organizations and not individuals; and therefore, were not subject to the Oklahoma Domestic Protection Act.

e6cf6c48-2371-4fbf-a000-295f970dce84

Fleig v. Landmark Construction Group

oklahoma

Oklahoma Supreme Court

FLEIG v. LANDMARK CONSTRUCTION GROUP2024 OK 25Case Number: 119432Decided: 04/08/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CARL FLEIG, Plaintiff/Appellant, v. LANDMARK CONSTRUCTION GROUP, Defendant/Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV HONORABLE ROBERT TRENT PIPES, TRIAL JUDGE ¶0 The appellant, Carl Fleig, lost a lawsuit stemming from a contract dispute over roofing work done in conjunction with the purchase of a house. Subsequently, the trial court awarded $51,331.00 in attorney fees against Fleig. He appealed, and the Court of Civil Appeals affirmed the trial court's attorney fee award. We granted certiorari only to address whether the trial court's order awarding attorney fees evidences that the trial court complied with the directives of State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. We hold that it does not. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED IN PART AND WITHDRAWN FROM PUBLICATION; TRIAL COURT REVERSED IN PART; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. E.W. Keller, Harry Dalton, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Phillip A. Schovanec, Oklahoma City, Oklahoma, for Defendant/Appellee. KAUGER, J.: ¶1 We granted certiorari to address the issue of whether the trial court's order awarding attorney fees evidences that trial court complied with the directives in State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. We hold that it does not. FACTS ¶2 In July of 2010, homeowners contracted with the appellee, Landmark Construction Group, Inc., (Landmark) to replace a hail-damaged roof on their home in Oklahoma City, Oklahoma. The homeowners were also in negotiations to sell the house to the appellant, Carl Fleig (Fleig). Fleig's mortgage company required a new roof in order for him to purchase the home. Landmark replaced the roof in August of 2010 for a total cost of $23,125.00. ¶3 By July of 2011, the new roof had leaked and caused damage to both the inside and outside of the home. Outside repairs cost $2,535.00, and inside repairs cost $1,387.51, for a total sum of $3,922.51. Landmark refused to address the leaks on the ground that any warranty given to the prior homeowners did not transfer to Fleig. Fleig paid a contractor to repair the roof and sought $1,400.00 from Landmark to repair the interior damage. ¶4 On December 19, 2011, Fleig sued Landmark claiming that the roof certification it completed for the sale of the house either acted as a warranty or an assurance on which Fleig relied in purchasing the home. Fleig later asserted theories of implied warranty, contractual warranty, and fraud. The matter went to a bench trial on November 2, 2012. ¶5 At the close of Fleig's presentation of evidence, Landmark moved for a directed verdict, which the trial court granted. On November 30, 2012, Landmark filed a motion for attorney fees. An order filed April 15, 2013, reflects that the trial court held a hearing on attorney fees on December 20, 2012, and signed an order awarding Landmark $5,000.00 in attorney fees. ¶6 On April 15, 2013, Fleig appealed, and the Court of Civil Appeals affirmed the trial court. On June 8, 2015, we vacated the Court of Civil Appeals opinion and adopted the dissenting opinion. We remanded the matter to the trial court because Fleig had established a prima facie case for several possible theories of recovery. A different trial judge held a second bench trial on January 12, 2017, giving Landmark the opportunity to contest the facts which were previously presented by Fleig. ¶7 On March 30, 2017, the trial court filed a judgment, and it entered an award against Landmark for $2,725.00. On April 13, 2017, Fleig appealed. While the appeal was pending, Fleig filed a motion for attorney fees in the trial court, requesting $29,995.00. On December 20, 2019, the Court of Civil Appeals affirmed the trial court in part, reversed it in part, and remanded the cause. The Court of Civil Appeals opinion provided in pertinent part: . . . Based on the evidence produced during the second trial, and considering the evidence from the first trial, it is clear that Landmark did not contract to do the work on Fleig's roof that the district court found to be the proximate cause of Fleig's damages. Likewise, a 'Roofing Certification' provided by Landmark at the time Fleig purchased the house was not shown to be misleading or the cause of any damage suffered by Fleig. Fleig did not appeal the judgment in favor of Landmark that excluded the damage to the interior of his house or certain work outside the scope of the Landmark contract. That part of the judgment is affirmed. The remaining portion of the judgment is reversed, and the case is remanded with instructions to enter judgment for Landmark. . . . ¶8 Fleig petitioned this Court for certiorari, and on January 9, 2020, we denied his request. On June 15, 2020, we granted Landmark's Motion for Appeal-Related Costs and taxed $388.50 in appeal-related costs against Fleig. After mandate issued on July 16, 2020, Landmark filed motions for attorney fees and costs in the trial court. It sought $1,621.85 in costs, and $65,666.50 in attorney fees for both trial court and appellate court work. The spreadsheet used to supplement the attorney fee motion begins in February of 2014, and ends on July 29, 2020. ¶9 Fleig objected to Landmark's costs, but agreed that $925.14 was proper. Fleig also disputed the attorney fees as excessive. Even though he previously sought nearly $30,000.00 in attorney fees himself, he suggested that only $3,000.00 in attorney fees was reasonable to award Landmark. ¶10 On February 24, 2021, the trial court entered a two-page order awarding $925.14 in costs and $51,331.50 in attorney fees to Landmark. The order provides in pertinent part: . . . As for the Defendant's claim for attorney's fees the Court notes that there is no dispute that the hourly rate of Defense counsel is reasonable. Further, there is no dispute that this application should be reviewed under a 'loadstar' [sic]analysis. See State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶8. This case has had somewhat of a tortuous road to its conclusion having been heard by two trial judges and having been appealed twice. The complexity and hard fought nature of the case is [sic] should not be diminished by the claimed amount in dispute as evidence by the length and nature of the proceedings which included a combined forty one pages of appellate opinions to lead to this point. The parties further stated that they were not requesting a detailed analysis and order but rather just wanted a 'number.' . . . ¶11 On March 25, 2021, Fleig appealed, arguing that the attorney fee award was excessive. The Court of Civil Appeals affirmed the trial court, holding that the fee award was not inherently excessive, and that Fleig's arguments concerning over billing were waived on appeal. We granted certiorari on February 13, 2024, to give guidance to trial judges as to what is required to be set forth in an order awarding attorney fees. A TRIAL COURT ORDER AWARDING ATTORNEY FEES MUST SET FORTH WITH SPECIFICITY THE FACTS AND COMPUTATION TO SUPPORT THE AWARD. THE TRIAL COURT MUST MAKE FINDINGS OF FACT, INCORPORATED INTO THE RECORD, REGARDING THE HOURS SPENT, REASONABLE HOURLY RATES, AND THE VALUE PLACED ON ADDITIONAL FACTORS IN EACH CASE. ¶12 Landmark argues that the trial court's award of attorney fees was reasonable, especially considering the length of time this cause has taken, and the nature of the multiple issues involved. Fleig disagrees. He seeks an award that is approximately six percent of what the trial court awarded. ¶13 The rules that each litigant bears the cost of their legal representation and our courts are without authority to assess and award attorney fees in the absence of a specific statute or a specific contract between the parties are firmly established in this jurisdiction.1 When a question on appeal presents the issue of reasonableness of attorney fees awarded by the court, abuse of discretion of the trial judge is the standard of review.2 Under this standard, a trial court will not be reversed unless it made a clearly erroneous conclusion against reason and evidence.3 ¶14 In State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶¶20-22, 598 P.2d 659, the Court set forth what evidence an attorney is required to present to the trial court when seeking attorney fees. We also delineated what a trial court must do in order for this Court to review an award under the abuse of discretion standard. Today we take the opportunity to express that a trial court order awarding attorney fees must, with specificity of facts and computations to support an award, include findings of fact regarding hours spent, reasonable hourly rates and the value placed on additional factors in each case. ¶15 The only issue presented in Burk was whether the trial court's award of attorney fees to be paid from an equitable fund was excessive. The Court looked to three federal cases4 and the Oklahoma Code of Professional Responsibility,5 to set forth factors as a guidance for trial courts to determine what amount of attorney fees to award. ¶16 The numerous factors included: 1) the time and labor required; 2) the novelty and difficulty of questions; 3) the skill required to perform the legal service properly; 4) the preclusion of other employment by the attorney; 5) the customary fee; 6) whether the fee was fixed or contingent; 7) time limitations imposed by the client or circumstances; 8) the amount involved and results obtained; 9) the experience, reputation and ability of the attorneys; 10) the undesirability of the case; 11) the nature and length of the relationship with the client; 12) the type of work involved; 13) the number of hours expended; 14) the contingent nature of the litigation; 15) the benefits conferred on plaintiff; 16) services rendered to the public; and 17) difficulty of issues and skill involved. ¶17 The Burk Court also expressly directed what attorneys must present to the trial court to recover attorney fees, and what the trial court must include in its order awarding attorney fees. Attorneys must present to the trial court detailed time records showing the work performed, and other evidence as to the reasonable value for the services performed as measured by the local legal community standards. Lawyers seeking reasonable compensation such as an incentive or bonus must offer evidence relating to one or more of the criteria or standards for reasonable fees set forth by this Court. ¶18 Regarding the trial court we said: A particular word of caution to the trial judges of Oklahoma is here warranted. When a question on appeal presents the issue of reasonableness of attorney's fees awarded by the court, abuse of discretion by the trial judge is the standard of review. Therefore, the trial court should set forth with specificity the facts, and computation to support his award. While the compensatory fee is not all that difficult a problem on review if the trial court has made findings into the record regarding hours spent and reasonable hourly rates, the value placed on additional factors will be different in each case. Obviously, the reasonable value to be given for incentive fees should bear a reasonable relationship to the aggregate hourly compensation. ¶19 The problem in this cause is that the parties appeared to lessen the trial court's duties by stating that "they were not requesting a detailed analysis and order, but rather just wanted a 'number.'" However, this they cannot do. In Spencer v. Oklahoma Gas & Electric Company, 2007 OK 76, ¶28, 171 P.3d 890, the Court reviewed a trial court's award of attorney fees and determined that the trial court failed to follow the directives of Burk, supra. ¶20 The trial court announced in its decision at the conclusion of the attorney fee hearing, listing the factors it considered under Burk, supra, but there was no evidence that the guidelines, other than the comparison of the fee to the amount recovered, played any real role in setting the attorney fee award. Accordingly, we held that the failure to follow the Burk directives required reversal. ¶21 Here, even though it was at the parties' request, the trial court order awarding attorney fees does not set forth with specificity the facts and computation to support the award. While there is some evidence regarding hours spent, etc., there were no findings of fact incorporated into the record regarding the hours spent, reasonable hourly rates, and the value placed on any additional factors. Pursuant to our holdings in Burk, supra, and Spencer, supra, we hold that the trial court abused its discretion in its failure make findings of fact and incorporate them into the record, following the Burk directives. In order to allow the trial court to comply, reversal is required. In all other respects, the Court of Civil Appeals opinion is affirmed. ¶22 On May 5, 2023, after the Court of Civil Appeals issued its opinion in this cause, Landmark filed a motion for appeal-related attorney fees. Because we vacate the Court of Civil Appeals opinion in part, and remand this cause to the trial court for further proceedings consistent with this opinion, an award of appeal-related attorney fees is premature at this time. CONCLUSION ¶23 A trial court order awarding attorney fees must set forth with specificity the facts and computation to support the award. The trial court must make findings of fact incorporated into the record regarding the hours spent, reasonable hourly rates, and the value placed on additional factors. The parties' request to just "give them a number" does not alleviate the trial court of this duty. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED IN PART AND WITHDRAWN FROM PUBLICATION; TRIAL COURT REVERSED IN PART; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ROWE, V.C.J., KAUGER, EDMONDSON, GURICH, DARBY, KUEHN, JJ., REIF, S.J., concur. WINCHESTER, COMBS, JJ., dissent. KANE, C.J., recused. FOOTNOTES 1 Boatman v. Boatman, 2017 OK 27, ¶16, 404 P.3d 822; Eagle Bluff, L.L.C. v. Taylor, 2010 OK 47, ¶16, 237 P.3d 173 (quoting Kay v. Venezuelan Sun Oil Co., 1991 OK 16, ¶ 5, 806 P.2d 648, 650). 2 State ex rel. Harris v. Three Hundred Twenty Five Thousand & Eighty Dollars, 2021 OK 16, ¶17, 485 P.2d 242; Childers v. Childers, 2016 OK 95, ¶28, 382 P.3d 1020; McCabe v. McCabe, 2003 OK 86, ¶13, 78 P.3d 956; Merritt v. Merritt, 2003 OK 68, ¶20, 73 P.3d 878. 3 Boatman v. Boatman, see note 1, supra; Broadwater v. Courtney, 1991 OK 39, ¶7, 809 P.2d 1310; Abel v. Tisdale, 1980 OK 161, ¶20, 619 P.2d 608. 4 Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanity Corp., 487 F.2d 161 (3rd Cir. 1973); Evans v. Sheraton Park Hotel, 503 F.2d 177, 187 (D.C. Cir. 1974); National Ass'n of Reg. Med. Programs, Inc. v. Weinberger, 396 F. Supp. 842 (D.C. Cir. 1975), [award of attorney fees reversed, 551 F.2d 340 (D.C. Cir. 1976). 5 The Code of Professional Responsibility in effect at the time was 5 O.S. 1971 Ch. 1, App. 3, DR. 2-106. The current version of this provision provides in now 5 O.S. 2021 Ch. 1, App. 3, Rule 1.5 and it provides: (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of determination. (d) A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement and the agreement is confirmed in writing; and (3) the total fee is reasonable.

0bb59dcc-73f9-4357-98a3-8a7f7d5f9304

KNOX v. OKLAHOMA GAS AND ELECTRIC CO.

oklahoma

Oklahoma Supreme Court

KNOX v. OKLAHOMA GAS AND ELECTRIC CO.2024 OK 37Case Number: 121047Decided: 05/21/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KATHRYN LOUISE KNOX, individually; and as Surviving Spouse of David Odell Knox, Deceased, Plaintiff, v. OKLAHOMA GAS AND ELECTRIC COMPANY, d/b/a OG&E SUNPOWER CORPORATION, SYSTEMS; MOSS & ASSOCIATES, LLC d/b/a MOSS SOLAR; and BJ'S OILFIELD, Defendants, and SUNPOWER CORPORATION SYSTEMS, Third-Party Plaintiff/Appellant, v. BJ'S OILFIELD CONSTRUCTION, INC., Third-Party Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 In a tort action brought against various entities by the widow of the deceased based upon alleged tortfeasor liability by alleged non-employers and after a worker's compensation award, the employer filed a motion to dismiss a third-party petition filed against employer by one of the defendants. The Honorable Anthony L. Bonner, District Judge, sustained the motion to dismiss. Defendant appealed and the appeal was retained by the Supreme Court. We hold: (1) The exclusive remedy and liability language in 85A O.S.Supp.2014, § 5 does not prevent an employer from creating non-employer legal relationships, capacities, or roles, but those relationships, capacities, or roles cannot create a negligence tort liability for the same physical injury used by a party for a compensable workers' compensation award; and (2) The language of 85A O.S.Supp.2014, § 5 does not prohibit an employer from creating an indemnity agreement holding others harmless for the employer's intentional conduct not subject to exclusive workers' compensation remedies. ORDER OF DISTRICT COURT REVERSED AND CAUSE REMANDED FOR ADDITIONAL PROCEEDINGS Victor F. Albert, Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., Oklahoma City, Oklahoma, for Third-Party Plaintiff/Appellant. Thomas R. Kendrick and Emma C. Kincade, De Witt Paruolo & Meek, P.L.L.C., Oklahoma City, Oklahoma, for Third-Party Defendant/Appellee. EDMONDSON, J. ¶1 We hold: An employer may not contractually create a common-law negligence liability for the employer by creating additional non-employer roles or capacities when this negligence liability is based upon the same physical injury for a compensable workers' compensation award. ¶2 SunPower's third-party petition alleged an intentional tort by BJ's Oilfield Construction. The exclusive remedy and liability language of 85A O.S.Supp.2014, § 5 does not prevent an employer from creating an additional capacity or role and contractually agreeing to indemnify and hold harmless another for the employer's intentional torts. The contract between BJ's Oilfield Construction and Moss contained an indemnity clause that expressly included SunPower as a beneficiary of an indemnity clause. The order dismissing SunPower's third-party petition against BJ's Oilfield Construction is reversed and the cause is remanded to the District Court for additional consistent proceedings. I. Summary ¶3 An employee died at a construction work site while working for his employer. The employee's spouse brought an action in a District Court against the owner of the work site, contractor, subcontractor, and employer. The appellate controversy is between the contractor, SunPower Corporation Systems (SunPower), and the employer/subcontractor, BJ's Oilfield Construction, Inc. (BJ's, BJ's Oilfield, or BJ's Oilfield Construction). II. Trial Court Proceedings and Prior Related Appeals ¶4 Oklahoma Gas and Electric (OG&E) contracted with SunPower Corporation Systems (SunPower) to develop OG&E's property for a solar power facility. SunPower contracted with Moss & Associates (Moss) with the latter as contractor for construction of the facility. Moss contracted with BJ's to prepare this construction site. ¶5 David Knox was an employee of BJ's and while working at the construction site he died as a result of a fellow employee's use of a trenching machine augur. Knox's spouse of the deceased sought and received Oklahoma workers' compensation benefits. ¶6 Knox's spouse brought a wrongful death claim in Oklahoma County District Court. She alleged SunPower, Moss, and OG&E (1) controlled and/or supervised the work performed by BJ's, (2) knew employees of BJ's lacked proper supervision and disregarded safety protocols, (3) knew the trenching machine created an unreasonably dangerous work environment, and (4) failed to provide proper supervision for safety purposes. She also included BJ's as a defendant. ¶7 Defendants filed separate motions to dismiss Knox's petition and they were granted. Three appeals were filed. Two appeals reviewed separate dismissals of plaintiff's claims against Moss and SunPower. These two dismissals were based upon the two defendants identifying themselves with "prime contractor" status. The order granting dismissal to Moss was reversed because prime contractor status for Moss was asserted by unsupported assertions in a brief and oral argument, and without evidence or stipulation on the issue.1 SunPower's dismissal order was reversed because its assertion of prime contractor status was based upon counsel's oral argument and not evidence.2 ¶8 The third appeal involved OG&E's dismissal request based upon an argument Knox failed to state a claim upon which relief may be granted. The appellate court reversed the trial court's dismissal because OG&E's argument was based upon denying the factual assertions in Knox's petition that OG&E directed, operated, controlled and/or supervised the work which resulted in Knox's death. The appellate court concluded that disputes of fact were not proper for adjudicating the legal sufficiency of plaintiff's petition.3 The three appeals remanded the controversy to the District Court. III. Trial Court Proceedings and Current Appeal ¶9 SunPower's answer raised affirmative defenses, and asserted a cross-claim against Moss based upon a previous written agreement providing that Moss defend and indemnify SunPower. A third-party petition was filed by SunPower against BJ's Oilfield, and then an amended third-party petition. ¶10 SunPower's amended petition included allegations: SunPower's agreement with Moss, Moss agreed to indemnify SunPower regarding claims arising from events on the job site, Moss was subcontractor, BJ's was a second tier subcontractor, and BJ's was responsible for any claim against SunPower based upon the death of Knox and principles of contribution and indemnity. ¶11 BJ's Oilfield filed a motion to dismiss SunPower's third-party petition. The motion cited 12 O.S. §2012(B)(1) & (6), and argued: (1) BJ's legal liability was determined and jurisdictionally limited by 85A O.S. § 5 due to a previous workers' compensation award against BJ's; (2) No exception to imposing liability upon BJ's was allowed by 85A O.S. §5; (3) Breach of Occupational Safety and Health Act regulations by BJ's Oilfield could not be used to impose legal liability in a wrongful death negligence action against BJ's Oilfield; (4) SunPower's claim for indemnity failed because no contractual, implied, or equitable right to indemnity existed; and (5) SunPower's contribution claim failed because SunPower previously alleged it was not a joint tortfeasor. ¶12 SunPower responded and argued a contractual indemnity existed. SunPower argued it possessed the status of a third-party beneficiary to BJ's contract with Moss. SunPower urged contribution and implied indemnity claims. SunPower also argued two provisions in 85A O.S. § 5 authorized its claim against BJ's Oilfield, (1) an independent legal relationship exception and (2) an intentional tort exception. SunPower alleged the contracts between the various parties created a legal identity for BJ's Oilfield that was in addition to BJ's Oilfield's identity as an employer of the deceased. Further, that BJ's Oilfield's legal identity as an employer was the identity adjudicated by the Workers' Compensation Commission. ¶13 BJ's Oilfield replied and argued no claim existed for an indemnity, a third-party claim, or a claim for contribution. BJ's Oilfield also argued that if SunPower's petition was an attempt to state a claim for indemnity or contribution, then such claims were barred by the exclusive workers' compensation remedy provision in 85A O.S. § 5. ¶14 The trial court granted BJ's Oilfield's motion to dismiss SunPower's third party petition. The trial court's order granted the motion without stating whether the order was based upon 12 O.S. § 2012(B)(1) (lack of jurisdiction based upon 85A O.S. § 5), or 12 O.S. § 2012(B)(6)(failure to state a claim), or both of the these grounds urged by BJ's Oilfield. ¶15 SunPower filed a petition in error and the appeal was sua sponte retained in this Court. A previous order of this Court required the appeal to proceed pursuant to 12 O.S. § 994(A).4 IV. Assignments of Error and Appellate Review ¶16 The assignments of error by SunPower's petition in error are: Whether the trial court erred when granting the motion to dismiss SunPower's amended third-party petition; Whether the workers' compensation exclusive remedy against an employer provided by 85A O.S.Supp.2014, § 5 may be used as a defense to claims for indemnity and contribution; Whether SunPower stated a claim for contractual and/or implied indemnity; Whether SunPower may assert a claim for indemnity as a third-party beneficiary of the agreement between Moss & Associates; Whether BJ's agreement to indemnify SunPower falls under the independent legal relationship exception to the exclusive remedy provision of the OAWCA (Oklahoma Administrative Workers' Compensation Act); and Whether SunPower's claims against BJ's fall under the intentional tort exception to the exclusive remedy provision of the OAWCA. ¶17 In summary, the order brought for appellate review sustained BJ's motion to dismiss SunPower's third-party petition, and the assignments of error focus on application of 85A O.S.Supp.2014, § 5, contractual indemnity, a third-party beneficiary contract, and tortfeasor contribution. ¶18 We recently explained the allegations of a petition are presumed or deemed true for the purpose of testing the sufficiency of the pleading, and indicated this presumption applies when a 12 O.S.2011, §2012(B)(1) motion challenges legal standing of a plaintiff as a deficiency on the face of the petition with reference to the petition's alleged cause of action.5 A motion to dismiss based upon 12 O.S.2011, § 2012(B)(6) has a function to "test the law supporting the claims" in the petition the motion seeks to dismiss.6 A motion to dismiss pursuant to 12 O.S.2011, § 2012(B)(6) does not test the veracity of facts underlying the allegations in the petition.7 ¶19 BJ's motion to dismiss has several exhibits and many contain their own multiple exhibits. A "written instrument" filed as an exhibit attached to a pleading becomes a part of the pleading for the purpose of the pleading.8 If exhibits are attached to a 12 O.S.2011, §2012(B)(6) motion then the nature of the information must be examined for matters outside of the pleadings presented in support of the motion, and whether these matters convert the motion into one for summary judgment.9 However, a motion to dismiss based upon 12 O.S.2011, § 2012 (B)(1) lack of jurisdiction is not converted to a motion for summary judgment by reliance upon extra-record facts (outside the pleadings) unless these facts are used as one or more elements to a cause of action or a defense thereto.10 A motion to dismiss based upon 12 O.S.2011, 2012 (B)(1) may assert a fact relating to jurisdiction, but when the fact is controverted by parties it is adjudicated as a controverted issue of fact, and an evidentiary hearing is one example of such adjudication.11 An order granting a motion to dismiss when based on a jurisdictional issue of law and no controverted issue of fact will receive de novo appellate review and allegations of the petition are deemed true.12 Facts used for appellate review of the trial court's order are based upon the amended petition's allegations and facts in exhibits that are uncontested for the purpose of the motion to dismiss. ¶20 The nature of a trial tribunal's decision is used to determine an appellate standard of review.13 The trial court decision sustained a motion to dismiss a petition based upon a motion raising 12 O.S.2011, § 2012(B)(1) (jurisdiction) and § 2012(B)(6) (failure to state a claim upon which relief may be granted). An adjudication of a petition's failure to state a claim presents an issue of law reviewed de novo.14 An adjudication of jurisdiction may involve an issue of law, an issue of fact, or both issues of law and fact.15 No issue of fact is raised and identified by the parties, nothing is presented by the parties to show the trial court necessarily made an adjudication of a controverted fact in order to sustain the motion to dismiss. ¶21 We treat the trial court's order as one adjudicating issues of law raised by the parties. The parties' trial court filings function as the appellate briefs16 with assignments of error in the petition in error.17 The trial court's order adjudicating a 12 O.S.2011, § 2012 (B)(1)&(6) motion raising issues of law receives de novo appellate review.18 ¶22 A party moving for dismissal bears the burden of proof to show the legal insufficiency of the petition to state a claim upon which relief may be granted.19 A plaintiff is required "neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which the plaintiff may be entitled. . . . If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied."20 A motion to dismiss is properly granted only when there are no facts consistent with the allegations under a cognizable legal theory.21 V. Analysis V(A). Employer's Non-Employer Capacity or Role in an Alleged Negligence Claim Cannot Destroy Employer's Exclusive Liability Mandated by 85A O.S.Supp.2014, §5. ¶23 The focus of BJ's motion to dismiss is the application of 85A O.S.Supp.2014, §5 to SunPower's claims. The language in effect on the date Knox died is codified at 85A O.S.Supp.2014, §5.22 One paragraph of this statute states as follows. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. 85A O.S. Supp.2014 § 5(A). BJ's argument may be summarized: (1) Section 5 provides the exclusive remedy for any person seeking from an employer damages or compensation based upon an accidental personal injury experienced by an employee when the employer has paid workers' compensation benefits; (2) Because SunPower's petition is based upon creating a legal liability for BJ's Oilfield based upon, and damages measured by, the accidental personal injury to Knox, an employee of BJ's Oilfield, then no common law action is available in District Court for SunPower. ¶24 Prior to 2013, an employer and employee were not prohibited by workers' compensation statutes from voluntarily conducting their affairs for the purpose of creating a legal status, capacity, role, or relationship with associated legal rights and obligations in addition to the employer/employee status, capacity, role, or relationship. A legal duty may arise by several means. For example, in Southland Cotton Oil Co. v. Renshaw, 1931 OK 96, 299 P. 425, we cited a legal encyclopedia's entry for "negligence" and explained a duty, a violation of which constitutes actionable negligence, may arise not only from a contractual duty, but also a duty prescribed by statute or ordinance, common law duty, a duty imposed by implication of law or operation of law, and the relation or situation of the parties. Id. 299 P. at 430.23 More recently we have stated a legal duty is "an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."24 This second capacity, role, or relationship is one created by an employer and it could potentially create legal liability for an employee's personal injury, and this liability existed outside the scope of workers' compensation remedies. For example, prior to 2013 when an employee received an accidental personal injury by an employer's breach of a duty or obligation created by this second capacity or relationship, then the injured employee could in some circumstances25 treat the employer as a third person for the purpose of a personal-injury third-party negligence action.26 This third-party tort liability against an employer was often referenced as the "dual-capacity doctrine"27 or "dual-persona doctrine."28 ¶25 The former dual-capacity doctrine was abrogated by 85A O.S.Supp.2014, §5,29 of the Administrative Workers' Compensation Act (AWCA),30 with language in section 5: "[T]he remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have." We have recognized that "shall" may be used as "mandatory language" in a workers' compensation statute to provide a clear pronouncement of the Legislature's public policy.31 The parties disagree on the meaning and application of this language to the parties' contracts. ¶26 The essential elements of a contract are: "(1) parties capable of contracting; (2) consent; (3) a lawful object; and (4) sufficient cause or consideration." 32 Every contract or agreement also has applicable law incorporated into the contract or agreement.33 The Legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law.34 Workers' compensation statutes form a part of the employer/employee contract.35 ¶27 The object of parties' consent must be a "lawful object."36 While the employer-employee relationship is consensual or voluntary, a presumed constitutional rule of law expressed by the Legislature controls the legal consequences for the parties agreement and their conduct.37 The Legislature may define or limit the effect of an individual's ability to create a voluntary self-imposed legal obligation in a workers' compensation statutory scheme. For example, a workers' compensation statutory scheme "limits the freedom of employer and employee to agree respecting the terms of their employment, but it inures to the general welfare of the people and has been sustained as a reasonable exercise of the police power of the State," in a circumstance that limited the authority of an employer when contracting with one not an employee, e.g., an insurance carrier.38 ¶28 The contract between Moss and Associates, LLC, and BJ's Oilfield Construction, LLC, states it "is entered into and effective on August 29, 2017." This date is a few years after the effective date of 85A O.S.Supp.2014, § 5, and the parties' efforts in structuring or creating their legal capacities and legal personas by agreement or otherwise in 2017 were efforts clearly subject to the statute. The legislative amendment clearly rejects liability of an employer based upon treating the employer as a third-party tortfeasor by a dual capacity or dual persona doctrine. In summary, the mandatory language in 85A O.S.Supp.2014, §5: "the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have," has an effect that an employer may not voluntarily conduct its affairs for the purpose or "lawful object" to create a legal obligation contrary to the language in 85A O.S.Supp.2014, §5. ¶29 The exclusivity of workers' compensation remedies referenced in 85A O.S.Supp.2014, §5 and restricting an employer's ability to self-impose a new legal capacity or relationship for negligence liability is an exclusivity defined by, or linked to, the statutorily defined physical injury of the employee. Generally, the AWCA defines and links its exclusive statutory remedies to (1) a statutorily defined injury or disease, (2) statutorily defined events relating to that disease or personal injury,39 (3) statutorily defined events or circumstances relating to the remedies,40 and (4) a person or entity's role, status, or capacity as an employer.41 For example: (1) The rights and remedies granted to an employee by the AWCA "shall be exclusive of all other rights and remedies of the employee . . . against the employer," 85A O.S. § 5(A);42 (2) The remedies are based upon "an injury or occupational disease," defined by the Act 85A O.S. §2(7), as shown by certain evidence, 85A O.S. §2(9)(c); (3) The "compensable injury" "means damage or harm to the physical structure of the body . . . of which the major cause is either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment," 85A O.S.§2(9)(a);43 (4) The exclusivity of the remedy for the employee's accidental personal injury is compensable within the context of the employer/employee relationship, and "[n]o role . . . other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, 85A O.S. § 5(A); and (5) An employee may maintain a legal action against any third party for the physical injury subject to an employer's lien, and an employer also has a claim and right against the third party tortfeasor, 85A O.S.Supp.2014, §43 (A)(1) & (B).44 ¶30 In summary, the statutorily defined physical injury (or disease) cannot be used for a "double recovery" by an employee against an employer as both (1) a workers' compensation injury arising out of the course and scope of employment and (2) a common-law negligence injury arising by means of a third-party dual capacity created by the employer.45 Both employer and employee possess a statutory right to proceed against a non-employer third-party tortfeasor. When an employer creates a legal status, capacity, or relationship other than that as an employer, 85A O.S.Supp.2014, §5 prevents this status, capacity or relationship from also creating legal liability for a physical injury (or disease) of the employee when that same physical injury is compensable by the Administrative Workers' Compensation Act; i.e., an employer may not create a self-imposed third-party tortfeasor negligence liability to employee when the physical injury used as the basis for the injury element in the common law negligence tort claim is the same injury made compensable by the substitute workers' compensation remedy.46 ¶31 We note the contract between Moss and Associates, LLC, and BJ's Oilfield Construction, LLC, states in Article 11, "Indemnity:" "Subcontractor's (BJ's) obligation hereunder shall not be limited by the provisions of any worker's compensation or similar act." The contract also states that if the indemnity obligations "are deemed to be in violation of law or against public policy, then in such event this paragraph is deemed to be automatically amended to require indemnity to the maximum amount permitted by law." Again, the dual capacity doctrine occurred when an employer created a non-employer third-party legal capacity or role by employer's contract, conduct, or other legally recognized means used by the employer. The Legislature's mandatory language in 85A O.S.Supp.2014, §5 removed this ability from the employer. ¶32 Some jurisdictions have addressed circumstances of imposing a full tort recovery upon an employer by an indemnity agreement when the employee has a workers' compensation exclusive remedy tied to an employer's immunity. For example, in Brown v. Prime Const. Co., Inc., 102 Wash. 2d 235, 684 P.2d 73 (1984), the court explained a tort recovery was based upon a "valid waiver of worker's compensation immunity by indemnification agreements." Id. 684 P.2d at 75. This result was explained further: "Courts enforce third party indemnification agreements despite the exclusivity of the Industrial Insurance Act because the employer voluntarily assumes liability in a contract; it is not imposed by tort law;" and because under recent statutory amendments "the 'empty chair' defense is no longer available to a general contractor sued by the employee of a subcontractor." Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wash. 2d 745, 912 P.2d 472, 476 480-81 (1996). Gilbert explained it recognized a contract of indemnity as an employer's waiver of workers' compensation exclusive liability as a means to apportion or assign fault to the party responsible where the empty chair defense was not available to a general contractor. ¶33 Three concepts argue against applying such reasoning herein. First, unlike in Gilbert: "We have previously held that the negligence of tort-feasors who are not parties to a lawsuit, 'ghost tort-feasors,' should be considered by the trier of fact in order to properly apportion the negligence of the parties."47 Secondly, in 2006 the Legislature similarly apportioned fault and provided for indemnity liability involving a "construction agreement," 15 O.S.2011, § 221,48 where the indemnity obligation shall not exceed the indemnitor's degree or percentage of negligence or fault, but did not include an exception for a voluntary contractual waiver of the exclusive liability, or "voluntary assumption" of liability, by employer assuming additional legal capacities with additional legal liabilities. Third, 85A O.S.Supp.2014, §5, was enacted several years after 15 O.S.Supp.2006, § 221, and the workers' compensation statute has no exceptions allowing an employer to structure its affairs and create different capacities with associated legal negligence liabilities, and a specific statute controls over a more general statute and the more recent enactment controls over an earlier one.49 ¶34 In summary, SunPower's claims based upon a contractual indemnity and a third-party contact theory seek to impose negligence liability upon BJ's for a physical injury to Knox when the same injury was previously used as a compensable injury for a workers' compensation award. BJ's could not waive the mandatory language in 85A O.S.Supp.2014, § 5, by a contract creating a legal capacity or role in addition to its role as an employer when this additional role or capacity is to be construed as legal liability for common-law negligence tort liability relating to the same physical injury previously used for a workers' compensation claim. ¶35 SunPower also invokes a principle of "contribution" and 12 O.S.2011, § 832. This section involves "[w]hen two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them...."50 The statute states it does not apply to intentional conduct.51 ¶36 SunPower's alleged contribution claim is based upon alleged negligence liability based upon the death of Knox, BJ's alleged role in causing the death of Knox as part of negligence liability, and SunPower's allegation that this tort liability has new life breathed into it by being incorporated into BJ's contract and indemnity agreement with Moss. For the purpose of a third-party proceeding for negligence liability/damages against BJ's as an employer, BJ's has no negligence-based tort liability for the same physical injury that was adjudicated in Knox's workers' compensation proceeding that resulted in a workers' compensation award against BJ's Oilfield. 85A O.S.Supp.2014, § 5. This claim of an employer's negligence-based tort liability for the same physical injury previously used as a basis for an adjudicated workers' compensation award was rejected in Farley v. City of Claremore, 2020 OK 30, 465 P.3d 1213. ¶37 SunPower presents the issue of the extent of BJ's negligence liability, as an indemnitor,52 for BJ's alleged negligence involving the death of Knox.53 BJ's liability for alleged negligence causing the death of Knox, its employee, is not actionable against BJ's Oilfield because the workers' compensation "remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have." An employer may create another role by contract, but it cannot thereby create a common-law negligence liability in addition to the workers' compensation remedies which were created as a substitute for the same compensable physical injury.54 V. Analysis V(B). Intentional Conduct and 85A O.S.Supp.2014, §5. ¶38 SunPower's petition in error states one issue is "[w]hether SunPower's Claims against BJ's fall under the intentional tort exception to the exclusive remedy provision of the OAWCA (Oklahoma Administrative Workers' Compensation Act)." The third-party petition by SunPower states in part: "The Petition alleges that BJ's was negligent and/or willfully negligent in certain manners regarding this matter, the Accident and/or Decedent's injuries and death. Petition, Nov. 12, 2021, Count I, No. 14. The amended petition alleged certain acts by BJ's Oilfield, such as BJ's having reason to know of a safety requirement and directing Knox to violate this safety requirement which allegedly resulted in his death. Amended Petition, July 1, 2022, Factual Allegations. The amended petition then states: "Such actions by BJ's establish willful liability and/or tort liability in excess of that which is protected by the exclusive remedy provisions of workers' compensation statutes." SunPower's oral argument in the trial court alleged "a case for an intentional tort here," but also included this reason as part of an argument needing BJ's Oilfield as a party for a jury to "apportion negligence." Tr. March 22, 2022.55 ¶39 The exclusivity of workers' compensation remedies and liability in 85A O.S.Supp.2014, § 5 does not apply to an "intentional tort" as defined by this statute and consistent with other workers' compensation statutes. B. Exclusive remedy shall not apply if: . . . 2. The injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer's conduct shall not constitute an intentional tort. The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. The issue of whether an act is an intentional tort shall be a question of law. I. If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either before the Commission or in the district court, but not both. 85A O.S.Supp.2014, §5(B)(2) & (I). This exception was addressed in Farley v. City of Claremore, supra, where a widow of the deceased employee filed a workers' compensation claim, and after the award was made she also filed an action in the District Court against the employer. We explained the nature of the workers' compensation remedy as a substitute for a common-law negligence claim, and observed: "the accidental nature of an injury compensable by a workers' compensation remedy excludes the possibility that this same injury is simultaneously an 'intentional tort' injury caused by an employer" when the Commission has made an award. Id. 2020 OK 30, ¶30, 465 P.3d at 1229, citing 85A O.S.Supp.2014, § 5(B)(2), and the explanation that "the exclusive liability pursuant to the workers' compensation statutes does not apply if the injury is the result of an intentional tort caused by the employer." We explained that the widow was a party to the administrative proceeding and the award by the Workers' Compensation Commission against the employer had preclusive effect on her subsequent claim against the same employer in District Court. Id. 2020 OK 30, ¶30, 465 P.3d at 1229-30. ¶40 BJ's Oilfield Construction cites Farley for two related arguments. The first is that the injury to Knox was not an intentional tort because (1) a workers' compensation award occurred, and (2) language in Knox v. SunPower, No. 119,005, an unpublished opinion by the Oklahoma Court of Civil Appeals, contains the statement: "Plaintiff's Petition does not meet 85A O.S. § 5(B)(2)'s intentional tort because Plaintiff has not plead facts that show it is at least as likely as it is not that the employer (BJ's) acted with the purpose of injuring the employee, as required by Section 5(B)(2)."56 BJ's motion states this means "as a matter of law, that no allegations of 'intentional' tortious acts have been plead or can be plead against BJ's."57 ¶41 SunPower simply states it was not a named party before the Workers' Compensation Commission proceeding involving the death of Knox. The parties leave unaddressed issues and authority relating to principles of issue preclusion, how those issues are raised and proved, and their application to BJ's motion to dismiss testing the sufficiency of SunPower's petition.58 Preserving error for appellate review of a motion to dismiss includes a party citing legal authority in the trial court for application to the alleged facts,59 citing authority gives notice, unless excused,60 to the trial judge and opposing party concerning the contested legal nature of a claim or defense within the procedural framework of the petition's allegations and 12 O.S.§ 2012 which lists several legal reasons which may be raised by the motion. While an estoppel may be applied within the context of a 12 O.S. § 2012(B)(6) motion, when a fact necessary for application an estoppel is absent from the record an appellate court may not use an alleged estoppel as a reason for affirming a judgment.61 The nature and extent of an estoppel alleged by BJ's cannot be determined based upon the trial court record before us. Our holding herein addresses the preserved issues relating to the sufficiency of the third-party petition and does not address estoppel-related issues. ¶42 The appellate caption in No. 119,005 has Knox as plaintiff/appellant and Moss as defendant/appellee. SunPower is named in the style as a defendant in the trial court. Moss was granted a motion to dismiss by the trial court and the appellate court reversed the order with a remand "for further proceedings consistent herewith" including discovery by the parties. Concerning Knox's appellate argument she should have been allowed to amend her pleading relating to an intentional tort, the appellate court stated "in its current form, Plaintiff's Petition does not meet 85A O.S. §5(B(2)'s intentional tort exception because Plaintiff has not plead facts" required to allege an intentional tort claim.62 Generally, "an appellate court's decision settles and determines, not only all questions actually presented, but all questions existing in the record and involved in the decision by implication."63 The appellate court expressly addressed Knox's failure to plead sufficient facts in a particular petition, and not whether facts could be pled for a cognizable intentional tort claim in a subsequent filing. Generally, when an appellate opinion reversed a trial court's judgment, did not determine an issue of fact due to a lack of proof, and the cause was remanded for further consistent proceedings, then a party may amend a pleading and present proof necessary for the issue of fact after the reversal and remand because: "the case then stands in the court below the same as if no trial had been had, and amendments may be filed and new issues formed not inconsistent with the issues passed upon by the Supreme Court."64 BJ's Oilfield Construction presents no authority herein that Knox's insufficiency to plead facts in her pre-remand petition against Moss65 made SunPower's subsequent third-party amended petition against BJ's Oilfield Construction insufficient as a matter of law as to an intentional tort claim by application of law-of-the-case, or estoppel, or some other theory. ¶43 The parties indicate that Knox's District Court claim is not against BJ's Oilfield as an employer, but a third-party action against non-employer parties based upon an alleged third-party negligence tort as authorized by 85A O.S.Supp.2014, § 43. A. Liability Unaffected. 1. a. The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his or her dependents, to make a claim or maintain an action in court against any third party for the injury. 85A O.S.Supp.2014, § 43(A)(1)(a). The parties do not argue that Knox brought an action based upon allegations of intentional conduct by BJ's Oilfield. Rather, SunPower asserts BJ's Oilfield committed an intentional tort and the indemnity clause in the Moss/BJ's Oilfield contract includes indemnity for BJ's alleged intentional tort. ¶44 In New York, "[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed," and a court may consider "the indemnification provision's list of potential grounds for claims," whether the grounds were "susceptible to third-party claims" or "exclusively or unequivocally referable to claims between the parties themselves," and, for example, whether the "indemnification clause at issue . . . is framed in language "typical of those which contemplate reimbursement when the indemnitee is required to pay damages on a third-party claim."66 Similarly in Oklahoma, with a contract of indemnity generally governed by 15 O.S.2011, §§ 421-430 (Title 15, Chapter Ten, Indemnity), a court ascertains the intention of the parties and gives effect to that intention if it may be done consistently with legal principles, and the whole contract must be considered in arriving at such intent.67 ¶45 SunPower states it has stated "a claim for contractual indemnity and implied indemnity. SunPower is identified as the "Owner," Moss as the "Contractor," and BJ's Oilfield is identified as the Subcontractor, in the Moss/BJ's Oilfield contract. The indemnity clause begins with "Subcontractor agrees to defend, indemnify and save harmless Contractor and Owner... from and against any claim, cost, expense, or liability . . . attributable to bodily injury, sickness, disease, or death . . . or occurring in connection with the performance of the Work by Subcontractor." ¶46 In response to BJ's motion to dismiss, SunPower states it has "stated a claim for contractual indemnity as a third-party beneficiary to the BJ's Subcontract." A beneficiary to a contract make seek its enforcement. 15 O.S.2011, §29.68 The language of the indemnity clause in the Moss/BJ's contract is applicable to SunPower as a named contractual beneficiary of the indemnity language for the purpose of SunPower's allegations in its petition, and we need not analyze circumstances when an implied indemnity arising from circumstances may exist. The phrase in the contract that "any liability" "occurring in with the performance of the Work by Subcontractor" is sufficiently broad to include an allegation that intentional tort liability of BJ's Oilfield was subject to the indemnity agreement made by BJ's Oilfield. ¶47 SunPower's third-party petition is an effort to establish liability on behalf of BJ's Oilfield Construction in order to relieve SunPower from its alleged liability in an action brought by Knox's spouse. SunPower seeks to accomplish this purpose by alleging BJ's Oilfield Construction caused Knox's death by an intentional tort, and implying SunPower, as a third party to this alleged intentional tort, is not, or should not be, legally liable for an intentional tort caused by another. Although circumstances may exist when a third party is liable for the intentional conduct of another,69 neither SunPower nor BJ's Oilfield Construction raise or brief when a third party is liable for another's intentional tort. We need not address this hypothetical issue on appellate review of an order granting BJ's motion to dismiss.70 ¶48 BJ's Oilfield Construction does argue in support of its non-liability as an employer: "To be equitable as well as effective, this protection [by the exclusive nature of the workers' compensation remedy] must extend to all liability either directly or indirectly." (Explanatory phrase added.) The statute providing exclusivity of the workers' compensation remedies, 85A O.S.Supp.2014, §5, also expressly states this exclusivity does not apply to an employer's intentional tort. The exclusivity of the workers' compensation remedies is based upon the Legislature substituting an employee's common-law negligence remedy against an employer with the statutory remedies, and no statute is invoked for the concept that the exclusivity of the workers' compensation remedies extends "to all liability either directly or indirectly" when an employer is subject to a claim based upon an alleged intentional tort. ¶49 For our review of the facial sufficiency of SunPower's petition and within the arguments briefed by the parties, SunPower alleged the existence of a contractual indemnity that included liability based upon an alleged intentional tort by BJ's Oilfield Construction. We reverse the trial court's order granting the motion to dismiss and remand for further proceedings. VI. Conclusion ¶50 SunPower's third-party petition is insufficient to state any negligence liability against BJ's Oilfield because: (1) A common-law negligence basis of liability was substituted by the workers' compensation remedy for the same physical injury pled in both the workers' compensation proceeding and in the District Court as one basis for the indemnity; and (2) BJ's Oilfield, as an employer, may not create an additional capacity or role for common-law negligence liability for the same physical injury used for a compensable workers' compensation award. ¶51 SunPower's third-party petition expressly alleged an intentional tort by BJ's Oilfield. The exclusive remedy and liability language of 85A O.S.Supp.2014, § 5 does not prevent an employer from creating an additional capacity or role by contractually agreeing to indemnify and hold harmless another for the employer's intentional torts. The contract between BJ's Oilfield and Moss contained an indemnity clause that expressly included SunPower as a beneficiary of the indemnification clause. ¶52 The order dismissing SunPower's third-party petition against BJ's Oilfield is reversed and the cause is remanded to the District Court for additional consistent proceedings. ¶53 CONCUR: KAUGER, EDMONDSON, COMBS, GURICH, AND DARBY, JJ. ¶54 CONCUR IN PART and DISSENT IN PART: KANE, C.J.; ROWE, V.C.J. ¶55 DISSENT: WINCHESTER and KUEHN, JJ. FOOTNOTES 1 Knox v. SunPower, Okla. Sup. Ct. No. 119,005 (Okla. Court of Civil Appeals, unpub. opin., March 19, 2021). 2 Knox v. SunPower, Okla. Sup. Ct. No. 119,007 (Okla. Court of Civil Appeals, unpub. opin., March 19, 2021). 3 Knox v. SunPower, Okla. Sup. Ct. No. 119,006 (Okla. Court of Civil Appeals, unpub. opin., March 19, 2021). 4 Order (Okla. Sup. Ct. No. 121,047, April 10, 2023). 5 Berkson v. State ex rel. Askins, 2023 OK 70, ¶29, 532 P.3d 36, 48. 6 Guilbeau v. Durant H.M.A., LLC, 2023 OK 80, ¶7, 533 P.3d 764, 767. 7 Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157 ("court must take as true all of the challenged pleading's allegations together with all reasonable inferences that can be drawn from them"). 8 Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶4, n.10, 958 P.2d 128, 136. 9 Tucker v. Cochran Firm-Criminal Defense Birmingham LLC, 2014 OK 112, ¶30, 341 P.3d 673, 684. 10 Young v. Station 27, Inc., 2017 OK 68, ¶6, n.10, 404 P.3d 829, 833. Summary judgment is an adjudication on the merits of the controversy, based upon undisputed material facts, and must be denied if reasonable persons might reach different inferences or conclusions from the undisputed facts. Oklahoma Pub. Employees Ass'n v. Oklahoma Dep't of Central Servs., 2002 OK 71, ¶6, 55 P.3d 1072, 1076; Prudential Ins. Co. of America v. Glass, 1998 OK 52, ¶¶2-3, 959 P.2d 586, 588-89; Immel v. Tulsa Pub. Facilities Auth., 2021 OK 39, ¶11, 490 P.3d 135, 141. 11 Berkson note 5 supra, 2023 OK 70, ¶37, 532 P.3d at 51. 12 Farley v. City of Claremore, 2020 OK 30, ¶17, 465 P.3d 1213, 1224. 13 State ex rel. Okla. State Bd. of Med. Licensure & Supervision v. Rivero, 2021 OK 31, ¶ 41, 489 P.3d 36, 52 ("An appellate standard of review is based upon factors such as the nature of (1) the proceeding in the lower tribunal, (2) the tribunal's decision, (3) the procedure used in the lower tribunal, and (4) the judicial or quasi-judicial discretion reviewed on appeal."). 14 Miller v. Miller, 1998 OK 24, ¶15, 956 P.2d 887, 894. 15 I.T.K. v. Mounds Public Schools, 2019 OK 59, ¶¶10-11, 451 P.3d 125, 131-32; see also Farley v. City of Claremore, supra note 12 at 2020 OK 30, n.31, 465 P.3d at 1224 (An adjudication of jurisdiction may be based upon an issue of fact.). 16 Shero v. Grand Sav. Bank, 2007 OK 24, ¶4, 161 P.3d 298, 300 (pursuant to Okla. Sup. Ct. R. 1.36, parties' trial court filings serve as appellate briefs in an appeal from an order granting a motion to dismiss pursuant to 12 O.S. §2012, unless otherwise ordered by the appellate court). 17 See, e.g., Berkson v. State ex rel. Askins, 2023 OK 70, ¶¶37-39, 532 P.3d 36, 51 (An appellant is required to supply an appellate record showing assigned error; and when the appellate record is silent on whether a controverted fact was adjudicated, or necessarily adjudicated, for the order sustaining a party's motion to dismiss that urged dismissal on an issue of law, then an appellate court may adjudicate the assignments of error on appeal that are based upon the parties' preserved arguments concerning the issue of law raised in the motion to dismiss.); Beyrer v. Mule, LLC, 2021 OK 45, ¶9, 496 P.3d 983, 986-987 (issues adjudicated by appellate court must be raised and preserved before the trial tribunal and properly raised and preserved in the appellate court). 18 Farley v. City of Claremore, supra note 12, 2020 OK ¶¶17-18, 465 P.3d at 1224-1225. 19 Tuffy's, Inc. v. City of Okla.City, 2009 OK 4, ¶6, 212 P.3d 1158, 1162-63. 20 Dani v. Miller, 2016 OK 35, ¶¶10-11, 374 P.3d 779, 786 (material and citations omitted). 21 Dani v. Miller, supra note 20, at ¶11, 374 P.3d at 786; see also Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208 ("A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief."). 22 The date of injury/death is October 16, 2017, and this date is used to determine both the jurisdiction of the Workers' Compensation Commission and the law in effect for the purpose of a wrongful death action. Farley v. City of Claremore, supra note 12, 2020 OK 30, ¶28, 465 P.3d at 1229. Section 5 was not amended between 2014 and 2019. 85A O.S.Supp.2019, § 5 (legislative history note); cf. 85A O.S.Supp.2019, § 3(C) ("The Administrative Workers' Compensation Act shall apply only to claims for injuries and death based on accidents which occur on or after February 1, 2014."). 23 See also, Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (the concept of duty is "linked to the concept of foreseeability and may arise from four general sources: '(1) legislative enactments or administrative regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case'" ) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 n. 2 (Fla.1992) and its reliance on the four sources stated in Restatement (Second) of Torts § 285 (1965) for determining the "standard of conduct" for a reasonable person). 24 Trinity Baptist Church v. Brotherhood Mut. Ins. Services, LLC, 2014 OK 106, ¶22, 341 P.3d 75, 82-3 (citing Iglehart v. Bd. of Cty. Com'rs of Rogers Cty., 2002 OK 76, n. 17, 60 P.3d 497). 25 An employer's creation of a second or dual simultaneous capacity was not sufficient, by itself, to create a legally cognizable common-law obligation outside the scope of the employer's workers' compensation obligation. Price v. Howard, 2010 OK 26, n.5, 236 P.3d 82, (the Court previously "held that an employer did not act in a dual capacity simply because it occupied the two-fold position of employer and manufacturer") (explaining Weber v. Armco, Inc., 1983 OK 53, 663 P.2d 1221). 26 Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶11, 415 P.3d 521, 526-27 ("[A]n employer who was generally immune from tort liability might become liable to their employee as a third-party tortfeasor," if the employer possessed a second capacity, or dual capacity, that conferred upon the employer obligations independent of those imposed upon the employer as an employer.). 27 See, e.g., Farley v. City of Claremore, supra note 12, 2020 OK 30, ¶33, 465 P.3d at 1230-31 (dual-capacity doctrine did not allow a double recovery against employer by both tort and a workers' compensation remedy for the same physical injury by an employee). 28 Dyke v. Saint Francis Hosp. Inc.,1993 OK 114, 861 P.2d 295, 300-01. 29 Odom v. Penske Truck Leasing Co., supra note 26, 2018 OK 23, ¶ 14, 415 P.3d at 527 ("The plain language of 85A O.S.Supp.2013 § 5 unambiguously abrogates the dual-capacity doctrine with regard to employers as defined by the AWCA."). 30 Braitsch v. City of Tulsa, 2018 OK 100, n.5, 436 P.3d 14, 21 (the Oklahoma Administrative Workers' Compensation Act, OAWCA, repealed and replaced the provisions of the Workers' Compensation Code effective February 1, 2014). 31 Cattlemen's Steakhouse, Inc. v. Waldenville, 2013 OK 95, ¶15, 318 P.3d 1105, 1110. 32 Reeds v. Walker, 2006 OK 43, n.60, 157 P.3d 100, 113 (citing 15 O.S.2001, §2 and Christian v. Metropolitan Life Ins. Co., 1977 OK 132, ¶15, 566 P.2d 445, 448). 33 In re Vose, 2017 OK 3, ¶28, 390 P.3d 238, 249 ("extant applicable law is a part of every contract in this state as if it were expressly cited or its terms incorporated in the contract"). 34 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶30, n.54, 373 P.3d 1057, 1073 (citing Shepard v. Okla. Dept. of Corrections, 2015 OK 8, ¶ 18, 345 P.3d 377, 384). 35 Holley v. Ace American Ins. Co.,2013 OK 88, ¶8, 313 P.3d 917, 920. 36 15 O.S.2011 § 2: "It is essential to the existence of a contract that there should be: 1. Parties capable of contracting. 2. Their consent. 3. A lawful object; and, 4. Sufficient cause or consideration. 37 Brewer v. Bama Pie, Inc., 1964 OK 58, 390 P.2d 500, 502-503 (quoting Glielmi v. Netherland Dairy Co., Inc., 254 N.Y. 60, 171 N.E. 906, Cardozo, J., explaining a judicial determination whether an employment relationship exists is based upon legal consequences of facts showing the relationship, and not by a term in an "adroitly framed" contract); Carbajal v. Precision Builders, Inc., 2014 OK 62, ¶¶19, 25-26, 333 P.3d 258, 263, 264-65 (employer's I.R.S. forms not used by the employee and a notation on the memo line of one paycheck did not control whether individual was an employee); Starkey v. Okla. Dept. of Corrections, 2013 OK 43, ¶44, 305 P.3d 1004, 1020 ("legislative enactments are presumed constitutional"). 38 National Bank of Tulsa Building v. Goldsmith, 1951 OK 5, 226 P.2d 916, 920 (Court explained the legislation at issue "measurably limits the freedom of employer and employee to agree respecting terms of their employment," and "inures to the general welfare of the people," and was a permissible regulation of worker's compensation insurance contracts); see also Shepard v. Okla. Dept. of Corrections, 2015 OK 8, ¶18, n.27, 345 P.3d 377, 383-384 (a workers' compensation statute created using a police power is not controlled by parties' agreement made after the statute was enacted). 39 See, e.g., Kpiele-Poda v. Patterson-UTI Energy, Inc., 2023 OK 11, ¶15, 525 P.3d 28, 33 ("Oklahoma's Administrative Workers' Compensation Act ('AWCA') places a duty upon employers to bear the responsibility for compensating employees for accidental personal injuries arising out of and in the course of employment."). 40 See, e.g., Schlumberger Tech. Corp. v. Paredes, 2023 OK 42, ¶16, 528 P.3d 772 (discussed statutory provision that persona seeking benefits must file their claim within one to three years, depending upon the type of underlying injury or illness.); Hill v. American Med. Response, 2018 OK 57, ¶¶20-60, 423 P.3d 1119, 1128-1138 (party failed to show the state constitution was violated by a statutorily-required mandatory use of the AMA Guides, Sixth Edition). 41 This list of four categories is not exhaustive for explaining how the Legislature has tied or linked an employee's remedies to statutorily defined events or circumstances. 42 Historically, the exclusivity of the workers' compensation remedy was stated as a substitute in place of personal injury liability to employee with an employer's liability based upon a statutorily defined accidental personal injury experienced by the employee, and the exclusivity of the remedy was at the heart of the grand bargain between employers and employees. Odom v. Penske Truck Leasing Co., supra note 26, 2018 OK 23, ¶37, 415 P.3d at 532; Harter Concrete Products, Inc. v. Harris, 1979 OK 38, 592 P.2d 526, 528 (relying on 85 O.S.1971 § 12, an employee's remedy is a statutory "substitute remedy" in place of a common law remedy, and the employer is "protected from any other liability to the employee"). 43 Historically, liability was based upon an employee's accidental personal injury arising out of and in the course of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, ¶11, 991 P.2d 527, 531 (workers' compensation compensable physical injury (1) arose out of employment, and (2) in the course of employment); Smith's Estate v. Hearon, 1967 OK 43, 424 P.2d 970 ("The phrase 'arising out of' denotes cause or origin of injury, while the phrase 'in the course of' denotes the time, place and circumstances when, at and under which an injury occurs."). 44 When the employee was successful in a third-party action, the employer and its carrier possessed statutory subrogation rights "to the full extent of the compensation benefits paid the injured employee, and also to guard against the employee receiving double recovery," Prettyman v. Halliburton Co., 1992 OK 63, 841 P.2d 573, 577, as well as possessing a statutory recoupment claim in the event of a wrongful payout of proceeds in the third-party proceeding, ACCOSIF v. American States Insurance Co., 2000 OK 21, ¶7, 1 P.3d 987, 992. 45 See notes 25, 27 and 44 supra. 46 See, e.g., Farley v. City of Claremore, supra note 12, 2020 OK 30, ¶¶24-27, 51, 465 P.3d at 1227-28, 1239, (although a workers' compensation claim has different elements than those in a common-law negligence action, the workers' compensation claim acts as a substitute remedy for the same physical injury which would have been used for the injury element in a common-law negligence action brought prior to creation of the workers' compensation remedy); Bird v. Pruett's Food, Inc., 2023 OK 92, ¶7, 536 P.3d 578, 581 ("The material elements of a negligence claim are: (1) a duty owed by the defendant to protect the plaintiff from injury; (2) a failure to perform that duty; and (3) injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care."). 47 Gowens v. Barstow, 2015 OK 85, ¶31, 364 P.3d 644, 655 (citing Paul v. N.L. Industries, Inc., 1980 OK 127, ¶ 5, 624 P.2d 68, 70). A "ghost" tortfeasor is a non-party whose negligence must be judicially considered when "assessing proportionate fault in comparative negligence cases." Bode v. Clark Equipment Co., 1986 OK 21, 719 P.2d 824, 827 (citing with approval, Anderson v. Nat. Carriers, Inc., 10 Kan.App.2d 203, 695 P.2d 1293, 1298 (1985) where a subcontractor joined his principal, the injured party's employer, as a "phantom" party to the suit in order to have the employer's percentage of liability assessed by the jury although the employer was immune from negligence liability due to workers' compensation statutes). 48 15 O.S.2011, § 221, "Construction agreement" defined--Limitations on liability arsing out of death or bodily injury void--Exceptions A. For purposes of this section, "construction agreement" means a contract, subcontract, or agreement for construction, alteration, renovation, repair, or maintenance of any building, building site, structure, highway, street, highway bridge, viaduct, water or sewer system, or other works dealing with construction, or for any moving, demolition, excavation, materials, or labor connected with such construction. B. Except as provided in subsection C or D of this section, any provision in a construction agreement that requires an entity or that entity's surety or insurer to indemnify, insure, defend or hold harmless another entity against liability for damage arising out of death or bodily injury to persons, or damage to property, which arises out of the negligence or fault of the indemnitee, its agents, representatives, subcontractors, or suppliers, is void and unenforceable as against public policy. C. The provisions of this section do not affect any provision in a construction agreement that requires an entity or that entity's surety or insurer to indemnify another entity against liability for damage arising out of death or bodily injury to persons, or damage to property, but such indemnification shall not exceed any amounts that are greater than that represented by the degree or percentage of negligence or fault attributable to the indemnitor, its agents, representatives, subcontractors, or suppliers. D. This section shall not apply to construction bonds nor to contract clauses which require an entity to purchase a project-specific insurance policy, including owners' and contractors' protective liability insurance, project management protective liability insurance, or builder's risk insurance. E. Any provision, covenant, clause or understanding in a construction agreement that conflicts with the provisions and intent of this section or attempts to circumvent this section by making the agreement subject to the laws of another state, or that requires any litigation, arbitration or other dispute resolution proceeding arising from the agreement to be conducted in another state, is void and unenforceable. 49 Duncan v. Okla. Dept. of Corrections, 2004 OK 58, ¶6, 95 P.3d 1076, 1079 (statutory construction explained for seemingly conflicting statutes). 50 12 O.S.2011 § 832 (A): "A. When two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them except as provided in this section." 51 12 O.S.2011 §832(C): "C. There is no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury or wrongful death." 52 Indemnity "is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or some other person." 15 O.S.2011, § 421. An indemnitee is "[t]he person who, in a contract of indemnity, is indemnified or protected by the other." Black's Law Dictionary 910 (4th ed. 1951). An indemnitor is [t]he person which is bound, by an indemnity contract, to indemnify or protect the other." Id. 53 15 O.S.2011, § 221(C) states in part concerning a "construction agreement:" "but such indemnification shall not exceed any amounts that are greater than that represented by...percentage of negligence attributable to the indemnitor." (Emphasis added). 54 SunPower's argument implies without cited authority that the Legislature may create a statute giving an employer a contractual power to create a dual or additional capacity for the purpose of an indemnity agreement and create a waiver of employer's exclusive liability as to a class of individuals provided this class does not include injured employees, e.g., a dual capacity negligence liability for some but not all injured individuals or parties. This issue is hypothetical due to our construction of the mandatory language in 85A O.S.Supp.2014, § 5, and we need not address hypothetical issues. Tulsa Cty. Budget Bd. v. Tulsa Cty. Excise Bd., 2003 OK 103, n.31, 81 P.3d 662, 672 (Court does not answer hypothetical questions). 55 See, e.g., Wells v. Oklahoma Roofing & Sheet Metal. LLC, 2019 OK 45, ¶3, 457 P.3d 1020, 1023-1024 (classifying the allegations in petition as alleging intentional conduct by the party and noting allegations of a required improper safety procedure with employer's knowledge). 56 ROA, No. 121,047, BJ's Oilfield Construction, Inc.'s Motion to Dismiss Defendant SunPower Corporation Systems' Amended Third-Party Petition, July 21, 2022, at pg. 4, ¶8. 57 Id. 58 The parties do not address preclusive effect of an award by the Workers' Compensation Commission on non-parties to a Commission proceeding, or privity as it relates to preclusive effect of a Commission proceeding, or an estoppel used as a "sword" versus a "shield," or Oklahoma modification, if any, in the common law for preclusion or estoppel issues, or application of these principles to either review of the facial sufficiency of a party's allegations of fact in a petition or the extent, in fact, as to particular parties in the District Court litigation. See, e.g., In re Hyde, 2011 OK 31, ¶¶ 12-15, 255 P.3d 411, 415-16 (preclusive effect and privity discussed in the context of Workers' Compensation Court being bound by a finding in District Court); Anco Manufacturing & Supply Company, Inc. v. Swank, 1974 OK 78, 524 P.2d 7 (discussed estoppel); Taylor v. Sturgell, 553 U.S. 880, 891,128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008) (observing federal common law of preclusion is subject to due process limitations). 59 I.T.K. v. Mounds Public Schools, 2019 OK 59, ¶13, 451 P.3d 125, 133 (error asserted on appeal must be preserved in the trial court with cited authority or the error is deemed waived). 60 One of the reasons excusing the absence of notice occurs with the class of error known as "fundamental error" that is reviewable without a preserved exception. Capshaw v. Gulf Ins. Co., 2005 OK 5, n.30, 107 P.3d 595, 602. 61 In re M.K.T., 2016 OK 4, ¶86, 368 P.3d 771, 798 ("we are unable to address issues clearly outside the record"). 62 Knox v. SunPower, No. 119,005, Opinion March 19, 2021, at ¶14 (emphasis added). 63 Handy v. City of Lawton, 1992 OK 111, 835 P.2d 870, 873. 64 Wood v. Reed, 1943 OK 120, 144 P.2d 108, 109; see also Oil Valley Petroleum, LLC v. Moore, 2023 OK 90, n.80, 536 P.3d 556, 577 (citing Smedsrud v. Powell, 2002 OK 87, ¶13, 61 P.3d 891, 896 (on a judgment's reversal and a cause remanded, it returns to the trial court as if the judgment had never been decided, save only for the settled law of the case); Parker v. Elam, 1992 OK 32, 829 P.2d 677, 682 ("On remand from a reversed judgment, the parties are entitled to introduce additional evidence, supplement the pleadings, and expand the issues, unless specifically limited by the proceedings in error.")). 65 In a different appellate proceeding, Knox v. SunPower, No. 119,007, the appellate court reversed an order granting SunPower's motion to dismiss challenging Knox's petition against SunPower, and the appellate court's reversal was based upon SunPower's reliance upon extra-record facts, not the facial insufficiency of Knox's petition, and directed: "On remand, the trial court should allow the parties to conduct discovery...." Opinion, No.119,007, March 19, 2021, at ¶13. 66 Gotham Partners, L.P. v. High Riv. Ltd. P'ship, 76 A.D.3d 203, 906 N.Y.S.2d 205, 207 [1st Dept. 2010], lv denied 17 N.Y.3d 713, 957 N.E.2d 1157, 933 N.Y.S.2d 653 [2011] (explaining Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]). 67 Luke v. American Surety Co. of New York, 1941 OK 138, 114 P.2d 950, 951-52. 68 15 O.S.2011 §29: "A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." See also, Keel v. Titan Constr. Corp., 1981 OK 148, 639 P.2d 1228, 1231 (while it is not necessary that the party be specifically named as a beneficiary, the contract must be made for the benefit of the third person in direct or unmistakable terms). 69 See, e.g., Keel v. Hainline, 1958 OK 201, 331 P.2d 397 (conduct that "aided and abetted" another throwing an object that struck the plaintiff); Restatement (Second) of Torts § 876 (1965) (persons acting in concert, "for harm resulting to a third person from the tortious conduct of another"); Gaines -Tabb v. CI Explosives, USA, Inc., 160 F.3d 613, 620-21 (10thCir. 1998) (quoting Lockhart v. Loosen, 1997 OK 103, 943 P.2d 1074, 1080 (exception to principle that a third person's intentional tort is a supervening cause) (citing Lay v. Dworman, 1986 OK 85, 732 P.2d 455, 458--59, which discussed Restatement (Second) of Torts § 448 and landlord liability involving third-party criminal acts); Baker v. Saint Francis Hosp., 2005 OK 36, 126 P.3d 602, 605 (explaining Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, 1245 ("An employer may be held responsible for the tort committed by employee where the act is incidental to an done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs."). 70 Tulsa Cty. Budget Bd. supra at note 54.

c7ba1b42-0fd7-4b2a-8598-4e3a2b38cec6

Brown v. Dempster

oklahoma

Oklahoma Supreme Court

BROWN v. DEMPSTER2024 OK 17Case Number: 119,569Decided: 03/12/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STEPHANIE BROWN, surviving next of kin of JAXON DEAN COBLENTZ, deceased, Plaintiff/Appellant, v. JEREMY P. DEMPSTER, Defendant/Appellee. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION I ¶0 A mother seeks recovery from the loss of her minor child, who drowned when he fell into a neighbor's swimming pool. She alleged negligence against the owner of the swimming pool. The district court granted the property owner's motion for summary judgment, holding the owner did not owe a duty to the child. The mother appealed. The Court of Civil Appeals reversed the district court's judgment, concluding that it was a question of fact for the jury to decide as to whether the swimming pool was an attractive nuisance. This Court granted certiorari. We hold the swimming pool was not an attractive nuisance as a matter of law. However, a question of fact exists as to whether the owner is liable under ordinary premises liability law, precluding summary judgment in favor of the property owner. COURT OF CIVIL APPEALS OPINION VACATED; DISTRICT'S COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. T. Luke Abel and Lynn B. Mares, Abel Law Firm, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Maurice G. Woods, II, Seth A. Caywood, and Don W. Danz, McAtee & Woods, P.C., Oklahoma, City, Oklahoma, for Defendant/Appellee. Winchester, J. ¶1 Appellant Stephanie Brown (Brown), surviving next of kin of Jaxon Dean Coblentz, deceased, appeals a summary judgment in favor of Appellee Jeremy Dempster (Dempster). Five-year-old Jaxon Dean Coblentz (Jaxon) drowned after he fell into Dempster's swimming pool. The issue before this Court is whether the residential swimming pool was an attractive nuisance. We answer this question in the negative. The swimming pool at issue was not an attractive nuisance as there was no hidden or unusual element of danger in or near Dempster's swimming pool. However, a genuine issue of material fact exists to preclude summary judgment as to whether Dempster breached a duty owed to Jaxon under ordinary premises liability law. FACTS AND PROCEDURAL HISTORY ¶2 Dempster lived on three acres in Osage County, Oklahoma, where he owned a residential swimming pool. Dempster did not have a fence around the perimeter of the swimming pool or his property. However, Dempster's house was outside the limits of any municipality, and there was no ordinance or statute requiring a fence around the swimming pool on his property. ¶3 Brown lived with Jaxon, two houses down from Dempster. Jaxon and his family were at a swimming pool party at Dempster's house approximately two to three weeks before Jaxon's death, and Dempster knew that young children lived with Brown. On July 19, 2019, Jaxon walked two houses down the street and entered onto Dempster's property. Jaxon fell into Dempster's swimming pool and drowned. ¶4 On December 20, 2019, Brown filed this lawsuit against Dempster, alleging negligence. On February 11, 2021, Dempster filed a motion for summary judgment, arguing that Brown could not establish negligence under the theory of negligence per se or the doctrine of attractive nuisance. Brown responded that disputed material facts precluded summary judgment. ¶5 The district court granted Dempster's motion for summary judgment, ruling that Brown could not establish negligence per se as a matter of law because the absence of an enclosure around the swimming pool did not violate any statute, ordinance, rule, or code provision.1 The district court further concluded that the swimming pool was not an attractive nuisance as a matter of law. Brown appealed, and the Court of Civil Appeals reversed the district court's judgment, holding swimming pools are not excluded as a matter of law from the attractive nuisance doctrine. This Court granted certiorari. ¶6 We hold that the residential swimming pool at issue was not an attractive nuisance as a matter of law. However, a question of fact exists as to whether Brown can recover against Dempster under ordinary premises liability. STANDARD OF REVIEW ¶7 Summary judgment resolves issues of law, and we review a district court's grant of summary judgment de novo. U.S. Bank, N.A. ex rel. Credit Suisse First Boston Heat 2005--4 v. Alexander, 2012 OK 43, ¶ 13, 280 P.3d 936, 939. Using the de novo standard, we subject the record to a new and independent examination without regard to the district court's reasoning or result. Gladstone v. Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, ¶ 5, 66 P.3d 442, 446. The Court must draw all inferences and conclusions from the underlying facts contained in the record and consider them in the light most favorable to the party opposing the summary judgment. U.S. Bank, 2012 OK 43, ¶ 13, 280 P.3d at 939. If reasonable individuals could reach different factual conclusions under the evidentiary materials, summary judgment is improper. Id. DISCUSSION I. Dempster's swimming pool was not an attractive nuisance. ¶8 Under common law, the duty owed by a property owner to an individual on the property without permission is of a lesser degree than to an individual who has permission to enter the property. However, the attractive nuisance doctrine creates an exception to this common law rule when children of tender years are attracted onto the property and thus brought into contact with a dangerous condition on the premises. Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, ¶ 3, 771 P.2d 208, 210. The doctrine operates to impose a higher duty of care on the property owner in this limited set of circumstances. Lohrenz v. Lane, 1990 OK 18, ¶ 10, 787 P.2d 1274, 1277. The attractive nuisance exception requires a balancing of society's interests in protecting children against the inherent right of a landowner in the enjoyment of his property. Id. ¶9 The application of the attractive nuisance doctrine is generally a question of fact because many different factors must be weighed and considered. Knowles, 1989 OK 40, ¶ 4, 771 P.2d at 210.2 However, under the facts of this case, the district court properly decided that the residential swimming pool was not an attractive nuisance as a matter of law. ¶10 We have found in multiple cases that artificial bodies of water, much like residential swimming pools, are exempt from the attractive nuisance doctrine. See, e.g., Atchison, T. & S.F. Ry. Co. v. Powers, 1952 OK 165, ¶ 14, 234 P.2d 688, 690; Dennis v. Spillers, 1947 OK 208, ¶ 2, 185 P.2d 465, 465; City of Mangum v. Powell, 1946 OK 2, ¶ 11, 165 P.2d 136, 137. Our precedent regarding artificial bodies of water is in line with the Restatement (Second) of Torts § 339, which many states have adopted. The Restatement recognizes an exception to the attractive nuisance doctrine for those ordinary dangers, like water. Specifically, the Restatement notes: There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it. Restatement (Second) of Torts § 339 cmt. j (2023). ¶11 Similarly, in finding that the attractive nuisance doctrine did not apply to an artificial lake that caused a 10-year-old's death, our Court explained: A pond of water, it may be conceded, is always attractive to youngsters; but the dangers connected with and inherent in a lake or pond of water, natural or artificial, are obvious to everybody--even to a child old enough to be permitted by its parents to go about and play unattended upon the streets or in the public parks. It would not conform to the dictates of common reason to say that a child of the age of eight years, or even much younger, does not know and fully realize that a fall into a pond of water or a deep reservoir would result in injury to him, if not in his death. But there is no necessity for abstract reasoning upon the proposition, for we think it thoroughly settled by the decisions that a pond of water, whether natural or artificial, is not to be included in the same class with turntables and other complicated machinery, the inherent dangers of which are not obvious to a child. City of Mangum, 1946 OK 2, ¶ 11, 165 P.2d at 137. We then applied this holding to a manmade pond that was rectangular (much like a swimming pool in that it was 60 or 70 feet long, 20 to 25 feet wide, and up to 10 feet deep, with banks almost straight up and down) and concluded that the body of water was not an attractive nuisance. Atchison, 1952 OK 165, ¶¶ 4, 14, 234 P.2d 688, 689, 690. ¶12 Most relevant to our analysis here is Dennis v. Spillers, 1947 OK 208, ¶ 2, 185 P.2d 465, 465, which involved a seven-year-old who drowned in an ornamental pond. We held that the ornamental pond that was 75 feet in diameter, approximately 10 feet deep, and with steep sides was not an attractive nuisance. Id. The Court discussed how the ornamental pond had rock steps down into the pool and was attractive to children. It was in a populated residential section of the city, not fenced, near another pond that was enclosed with a fence, and near where children played. Id. In reaching its decision, the Court concluded: In the instant case, there was no allegation that there was anything unusual about the pond or its surroundings or that there was any hidden danger constituting a trap. It is a very regret[t]able tragedy, where a child is drowned, yet the defendants cannot be held in damages unless they have violated some duty on their part. Id. ¶ 7, 185 P.2d at 466. ¶13 The same is true of the residential swimming pool at issue here. The pool was constructed like a normal residential pool and equipped with the usual swimming pool accessories. Although attractive to children, it was not a nuisance or unusual. The pool had no condition that masked the inherent danger of a body of water. In the absence of such a condition, the district court properly concluded that Dempster's swimming pool was not an attractive nuisance. ¶14 The district court relied on Lofton v. Green, 1995 OK 109, 905 P.2d 790, in granting summary judgment to Dempster on the question of attractive nuisance. The Lofton Court upheld a jury verdict on negligence per se without answering the question of whether the swimming pool, wherein a 6-year-old drowned, was an attractive nuisance. The Lofton Court noted that we have never held a private residential swimming pool to be an attractive nuisance, but it did not conclude that we would never allow the instruction on attractive nuisance in a subsequent case involving a swimming pool. Id. ¶ 2, 905 P.2d at 791 Today, we again do not rule out the possibility that there could be a factual situation that would allow the jury to decide whether a swimming pool was an attractive nuisance. ¶15 We follow other jurisdictions that have allowed the attractive nuisance doctrine in cases where the owner constructed the swimming pool to constitute a trap or it had some unusual element of danger not existent in swimming pools generally. See, e.g., Cazort v. Garner, 644 S.W.3d 452, 458 (Ark. Ct. App. 2022); Banks v. Mason, 132 So. 2d 219, 222 (Fla. Dist. Ct. App. 1961); Mozier v. Parsons, 887 P.2d 692, 698 (Kan. 1995); Ausmer v. Sliman, 336 So. 2d 730, 731 (Miss. 1976). ¶16 For example, the Kansas Supreme Court determined that swimming pools are generally not attractive nuisances as a matter of law, with the court noting that it could not rule out the remote possibility that there could be a highly unusual and aggravated factual situation that might support consideration of the attractive nuisance doctrine. Mozier, 887 P.2d at 698. ¶17 Similarly, an Arkansas appeals court concluded that bodies of water, natural or artificial, do not constitute an attractive nuisance in the absence of any unusual element of danger and a swimming pool should be treated no differently. Cazort, 644 S.W.3d at 458. The Mississippi Supreme Court also held that the attractive nuisance doctrine does not extend to swimming pools except where the pool contains a hazard that is hidden or concealed and is not likely to be found and avoided by a child. Ausmer, 336 So. 2d at 731. ¶18 Finally, a Florida appeals court held that a swimming pool was not an attractive nuisance in the absence of any evidence that the swimming pool was a trap or a latent danger. Banks, 132 So. 2d at 222. The court further explained that a trap or danger does not include steep banks that are found in natural bodies of water or a straight-sided pool. Id. ¶19 We continue to adhere to our precedent in Oklahoma and elsewhere and hold the doctrine of attractive nuisance does not apply to artificial bodies of water, including swimming pools, that have no hidden or unusual element of danger. Because the residential swimming pool in this case had no hidden or unusual element of danger, we conclude that it was not an attractive nuisance. II. A question of fact exists as to whether Dempster is liable under ordinary premises liability law. ¶20 Determination of the attractive nuisance question, however, does not completely resolve the issue of whether summary judgment was proper. Even in the absence of the attractive nuisance doctrine, Dempster still had a duty to Jaxon either as a trespasser, licensee, or invitee. Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶ 9, 951 P.2d 1079, 1083.3 A landowner owes different duties depending on the status of the injured person. Id. at ¶ 10, 951 P.2d at 1083. ¶21 Brown contends that Jaxon was a licensee based upon an implied invitation from Dempster to the minor to use the swimming pool. In the alternative, Brown alleges that even if the minor was a trespasser, Dempster's conduct in failing to secure a barrier around the pool when there were fencing materials present on the property was negligence or wanton disregard for the safety of others. Dempster responds that Jaxon, alone, walked two houses down the street in a rural neighborhood to Dempster's house and entered onto his property as a trespasser. ¶22 Material questions of fact exist as to the events that caused this tragic death (e.g., why the 5-year-old was walking by himself two houses down the street to Dempster's house when Dempster had an unfenced pool) and whether Dempster breached any duty owed to Jaxon. A point articulated by the Kansas Supreme Court in determining liability in a case involving a minor's death in a swimming pool is instructive here: "A higher degree of care for the protection of a trespassing child should not be imposed on a property owner than is expected of a parent or custodian." Mozier, 887 P.2d at 697. We conclude there are facts sufficient to take Brown's case to a jury in the absence of the attractive nuisance doctrine. Instructing on ordinary premises liability will allow the jury to evaluate all the surrounding circumstances in determining liability. CONCLUSION ¶23 Our natural tendency is to want to help ease the suffering of the parents who lose a child; the drowning of a child of tender years is a tragedy. In determining a claim of legal responsibility for such a tragedy, it is difficult to resist the temptation to substitute sentiment for law and reason. We must not determine this case based on sympathy, which we all acknowledge exists. Apache State Bank v. Daniels, 1911 OK 490, ¶ 42, 121 P. 237, 245 (noting that the Court should not permit sympathy to decide rulings). Under the applicable legal principles and facts of this case, the attractive nuisance doctrine does not apply to Dempster's residential swimming pool. However, there are material questions of fact as to whether Brown can recover under ordinary premises liability law. The district court's judgment on the question of attractive nuisance is affirmed. However, we reverse and remand for a jury trial on Brown's claim for ordinary premises liability. COURT OF CIVIL APPEALS OPINION VACATED; DISTRICT'S COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH (by separate writing), DARBY, and KUEHN, JJ., concur. ROWE, V.C.J. (by separate writing) and HUDSON, S.J., concur in part and dissent in part. KANE, C.J., recused. FOOTNOTES 1 We do not address the rulings by the district court and the Court of Civil Appeals on Brown's claim of negligence per se. The district court's interlocutory ruling on that claim remains intact. 2 The Court in Knowles set forth the factors that must be considered when determining whether the attractive nuisance doctrine applies to a specific factual situation: 1) how uncommon the instrumentality is; 2) how unusually dangerous the instrumentality is; 3) how attractive the instrumentality is; 4) the probability of children coming into contact with the instrumentality; 5) whether the probability is so localized that harm can be avoided, or whether the probability is such that there is no indication of when and where the contact will occur; 6) how feasible it is to avoid danger of harm; 7) how great is the burden of avoiding the harm; 8) the effect of placing such a duty on a party; and 9) whether the child has an apparent intelligence and consciousness of the circumstances such that she/he could reasonably appreciate the danger or the lack of right to tamper with the instrumentality so that the duty to protect should not be imposed. Id. ¶ 3, 771 P.2d at 210. 3 For example, the Oklahoma Uniform Jury Instruction (Civil) 11.7 addresses the duty to children in the absence of the attractive nuisance doctrine. It states as follows: If you determine that [Plaintiff] was a trespasser and [he/she] has not proven all the elements under the attractive nuisance doctrine, then the [owner/occupant] of premises had no duty to make the premises safe for [him/her]. However, the [owner/occupant] of premises did have a duty not to injure [him/her] by a willful, wanton, or intentional act, if the [owner/occupant] knew or reasonably should have known of [his/her] presence on the premises. OUJI (Civil) No. 11.7. In the absence of an instruction on the attractive nuisance doctrine, the duty of care owed by the landowner to a child is that of a trespasser, unless the child falls under either the licensee or invitee classification. We note that the child is not a trespasser exposed to criminal liability or exposed to civil liability based upon the child's own negligence. See, e.g., OUJI (Civil) No. 9.4. The child is only considered a trespasser in the technical sense to determine what duty of care is owed by the landowner when a child enters upon a landowner's property without permission. 76 O.S.2021, § 80(C). GURICH, J., with whom Kauger, Edmondson, and Combs, JJ., join, concurring specially ¶1 Today the majority opinion concludes that under the facts of this case, the Defendant's swimming pool cannot be classified as an attractive nuisance. However, the opinion does not eliminate the attractive nuisance doctrine as a vehicle for establishing a landowner's duty to protect young children who are unable to appreciate the inherent dangers associated with swimming pools. This is significant. Although I believe all questions surrounding application of the attractive nuisance doctrine should be reserved for consideration by the factfinder,1 I join the majority decision because the opinion remands the case back for a jury to consider the other causes of action asserted by plaintiff, including the question of ordinary negligence.2 ¶2 A young child cannot be considered a trespasser if they are unable, because of their age, to discern whether it is appropriate to enter another's property--which is precisely what the doctrine of attractive nuisance was designed to address. See e.g., Kopczynski v. Barger, 887 N.E.2d 928 (Ind. 2008) ("The purpose of the attractive nuisance doctrine is to protect children from dangers which they do not appreciate.") (reciting Restatement (Second) of Torts § 339 cmt. m (1965)) (internal quotations omitted). Rooted in the common law, the attractive nuisance doctrine is an exception to the notion that a property owner owes no duty to a child trespasser other than to refrain from causing willful, wanton, or intentional harm. Knowles, ¶ 3, 771 P.2d at 209-10. In Cheek, we explained the rationale behind imposing a duty on landowners for dangerous, artificial conditions inherently attractive to trespassing children: [W]e see no sufficient reason why a landowner should not, at least, be deemed in duty bound to make reasonably safe any obviously dangerous, artificial, and attractive condition on his premises, which in character is clearly different from common and well-known dangerous natural conditions, especially when he is able to do so at little or no cost, and without appreciable impairment of his beneficial use of the same, in all cases in which his failure to do so involves reckless disregard for the safety of children of tender years, especially children under 7 years of age, or, in the absence of evidence of capacity to be guilty of contributory negligence, under 14 years of age, as a person of ordinary prudence must anticipate will probably be attracted to and may come in contact with and be injured by such dangerous conditions. Is it anything less than wantonness for a landowner, with actual knowledge of such dangerous, artificial, and attractive conditions of his premises, and of facts from which, as a reasonably thoughtful person, he must know that merely technical, if not unconscious, trespassers in the persons of children living or accustomed to congregate or be nearby may come in contact with and he seriously injured by such dangerous conditions, to abstain from removing the danger of such conditions, especially if he is able to do so at little or no cost, and without appreciable impairment of his beneficial use of the premises? Cheek, ¶ 14, 137 P. at 732. The purpose of this legal principle is to place a duty on landowners to child trespassers; undoubtedly because a young child can neither form the requisite intent to trespass on property nor grasp the potential dangers associated with an artificial hazardous condition. ¶3 The Oklahoma Uniform Jury Instructions detail the material facts a jury must weigh to find a landowner liable under the attractive nuisance doctrine: In some circumstances, an [owner/occupant] of premises may have a duty to exercise ordinary care to protect children who trespass on [his/her/its] premises from injury. If you find that [Plaintiff] was injured while trespassing on [Defendant's] land, then in order for [Plaintiff] to recover you must find all of the following to have been established: 1. The injury was directly caused by [describe the artificial condition] maintained by [Defendant] on the premises; 2. The condition was unusually attractive to children; 3. [Plaintiff] was attracted onto the premises by the condition; 4. The condition created an unreasonable risk of injury to children, which [Defendant] knew, or, as a reasonably careful person, should have known; 5. [Plaintiff] lacked the ability to appreciate or realize the risk; and 6. [Defendant] failed to exercise ordinary care to protect [Plaintiff] from injury. OUJI-CIV No. 11.5 (2d. ed. June 2018).3 I believe this instruction is a sufficient safeguard to enable jurors to make an educated decision when presented with the facts in each particular case. Obviously, young children will be naturally drawn to swimming pools, particularly when they include implements such as slides, diving boards, or other features designed to make a pool more enticing. Dempster even recognized the importance of securing the perimeter of his swimming pool, as the record demonstrates he had acquired fencing materials but had not yet completed installation. ¶4 As noted by the majority, we have previously declared that ponds, whether natural or artificial, do not amount to an attractive nuisance in the absence of hidden dangers. Lohrenz v. Lane, 1990 OK 18, ¶ 11, 787 P.2d 1274, 1277; Atchison, T & S.F. Ry. Co. v. Powers, 1952 OK 165, 243 P.2d 688, 690-91 (artificial pond not attractive nuisance). But cf. City of Anadarko v. Swain, 1914 OK 381, 142 P. 1104 (affirming jury verdict for child drowning in public park reservoir unprotected because of fence removal). However, ponds are distinguishable from swimming pools, because ponds are often utilitarian; for example, many are used to hydrate livestock and require open access. See Lohrenz, ¶ 14, 787 P.2d at 1278 ("A clear distinction can be drawn between the dangers of a steep-sided swimming pool, normally associated and in close conjunction with a residence, and a pond such as involved in the present case, located in a rural area and serving as a water source for livestock"). Similarly, it is impractical to put up barriers around rivers, lakes, or naturally occurring ponds. See City of Mangum v. Powell, 1946 OK 2, ¶ 12, 165 P.2d 136, 137 (1946) (noting the impracticability of surrounding naturally occurring bodies of water with an impenetrable wall). ¶5 On the other hand, a swimming pool is purposely constructed for recreation, and by its very design is intended to draw individuals to enter the body of water. Young children without an understanding of the potential danger are particularly susceptible.4 This Court has previously considered the fatal drowning of a young child in a neighbor's swimming pool. However, the Court's majority opinion5 declined to consider whether swimming pools are excepted from the attractive nuisance doctrine, because the plaintiff successfully recovered on another legal theory. Death of Lofton v. Green, 1995 OK 109, ¶¶ 6-8, 905 P.2d 790.6 ¶6 The majority opinion in this case sets out circumstances where a cause of action based on attractive nuisance should be submitted to the jury. Although the majority determined that the decision of the trial court on the attractive nuisance claim should be affirmed, it is clear that the trial court erroneously concluded that a swimming pool could never, as a matter of law, constitute an attractive nuisance. FOOTNOTES 1 Arguably, when the facts are viewed in a light most favorable to the non-moving party, reasonable persons could reach differing opinions on application of the attractive nuisance doctrine, which requires that the question be submitted to a jury. Knowles by and through Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, ¶ 4, 771 P.2d 208, 210. This Court initially adopted the attractive nuisance doctrine in City of Shawnee v. Cheek, 1913 OK 739, ¶ 14, 137 P. 724, 732. 2 As the majority notes in the opinion, the plaintiff has alleged the minor child was a licensee and not a trespasser. Regardless of the child's status on the property, the question is still one for the factfinder. See OUJI-CIV No. 11.4 (duty to trespasser) and 11.13 (duty to licensee). 3 Instruction 11.5 is very similar to the language in Section 339 of the Restatement of Torts (Second), which reads: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. 4 Other jurisdictions are split on whether the attractive nuisance doctrine is inapplicable, as a matter of law, to residential swimming pools. See, e.g., Louis A. Lehr, Jr., 2 Premises Liability 3d § 40:12 (West) (2023 ed.); Robin Cheryl Miller, Annotation, Liability of Owner of Private Residential Swimming Pool for Injury or Death Occasioned Thereby, 64 A.L.R.5th 1 (1998). However, in cases involving swimming pools unprotected by a barrier or fencing, courts have concluded that the doctrine is properly a question for the factfinder. For example, the Wisconsin Supreme Court held that an "insufficiently guarded swimming pool maintained in a residential area may be inherently dangerous to a child four years of age," and the question of attractive nuisance was to be decided by a jury. McWilliams v. Guzinski, 237 N.W.2d 437, 439 (1976). See also King v. Lennen, 348 P.2d 98, 101 (Cal. 1959) (holding the facts showed no adequate fencing and limited safeguards so the matter was a question for a jury); Giacona v. Tapley, 428 P.2d 439, 442-43 (Ariz. Ct. App. 1967) (affirming a jury verdict based on the attractive nuisance doctrine when a child drowned in a neighborhood pool because the defendants failed to erect adequate fencing); Simmons v. Whittington, 444 So. 2d 1357, 1360-1361 (La. Ct. ApP.2d. 1984) (reasoning that a backyard pool with no enclosure shows a lack of reasonable care on the part of the property owner, and upholding a lower court judgment predicated on the attractive nuisance doctrine). 5 The dissent suggested "a residential swimming pool which meets the test outlined in the Restatement (Second) of Torts § 3391 is an attractive nuisance." Green, 1995 OK 109, ¶ 1, 905 P.2d at 793-94 (Kauger, V.C.J. dissenting). In addition, the dissent noted that the majority opinion should not be read in a way that implied swimming pools are completely insulated from the attractive nuisance doctrine. Id. 6 The case was submitted to jurors on the issue of whether the neighbor/defendant's failure to install a functioning self-closing/self-latching gate on the surrounding fencing violated a city ordinance, and was, therefore, negligence per se. The jury found the Greens liable based on the theory that their fence did not comply with the requirements of the city ordinance, but also determined Ms. Lofton was equally negligent for failing to supervise her son. On appeal, this Court affirmed. In this case, the trial court determined that there was no cause of action for negligence per se, because the Dempster pool was not located within the city limits. That determination is affirmed by the majority, and I agree. The facts of this case provide the possibility of considering the comparative negligence between the landowner and the parents. ROWE, V.C.J., with whom HUDSON, S.J. joins, concurring in part, dissenting in part: ¶1 I concur with the majority that, absent a hidden or unusual element of danger, the residential swimming pool in this case is not an attractive nuisance. I respectfully dissent, however, that a jury determination as to premises liability is necessary in this case. ¶2 In an ordinary premises liability case, our threshold inquiry is the status of the entrant because the property owner's liability varies with the entrant's status. Brown v. Nicholson, 1997 OK 32, ¶ 6, 935 P.2d 319, 321. "Entrants onto real property fall into three categories: trespasser, licensee and invitee. . . . The determination of entry status is critical in a premises liability case because the duty of care the property owner must exercise expands or contracts based on the entrant's status." Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶¶ 9-10, 951 P.2d 1079, 1083. Under the Trespasser Liability Limitation statute, the child in this instance falls within the definition of a trespasser. 76 O.S. § 80(B)(2) ("A land possessor may be subject to liability for physical injury or death to a child trespasser from a highly dangerous artificial condition on the land. . ."). A trespasser is an individual who enters the property of another without the express or implied permission of the property owner. 76 O.S. § 80(C). Though the child here could be considered no more than a technical trespasser due to his tender age, we must nonetheless treat the child as a trespasser and not a licensee. ¶3 Generally, a property owner has no statutory duty to make the premises safe for a trespasser, except to refrain from harming them willfully, wantonly, or intentionally. 76 O.S. §80(A); Lohrenz v. Lane, 1990 OK 18, ¶ 10, 787 P.2d 1274, 1277. Our jurisprudence instructs wantonness is the equivalent to gross negligence and "an act or omission involving a reckless indifference to the safety of reasonably anticipated technical trespassers, such as children of tender years, although without intent to injure, may be wanton." Lohrenz, ¶ 16, 787 P.2d at 1278. Brown asserts that Dempster's alleged negligence in not securing his swimming pool against child trespassers reflects a wanton disregard for the safety of others. Nevertheless, this case lacks evidence suggesting that the lack of fencing around a residential swimming pool constitutes wantonness, given the absence of any statutory ordinance, rule or code provision mandating Dempster to do so. Without any facts demonstrating Dempster acted with reckless indifference or wantonness, the trial court's determination that no duty was breached by Dempster stands as the correct conclusion. ¶4 Alternatively, Brown argues that the child should be considered a licensee since his presence should have been anticipated by Dempster. "Licensee status is accorded to those individuals who enter onto another's land for his or her own benefit, interest or pleasure under such circumstances that the landowner is presumed to be aware of the person's presence there." Brewer By and Through Brewer v. Independent School Dist. No. 1, 1993 OK 17, ¶ 18, 848 P.2d 566, 571. Property owners owe "the duty to use ordinary care with regard to any defects or conditions in the nature of hidden dangers which were known or should have been known to the [property owner]." Id. In support of this argument, Brown states that Dempster should have reasonably anticipated the child's presence since the pool was close to the child's home, the child had used the pool in the past--which she argues created an implied invitation that the child could use the pool--and the pool was visible from the road. ¶5 Even if the child in this case was deemed to be a licensee, there was no hidden danger on Dempster's property and no evidence indicating Dempster failed to use ordinary care--there is no question of fact that would require resolution by a jury. As held by the majority, Dempster's pool "was constructed like a normal residential pool and equipped with the usual swimming pool accessories. . . [there was] no condition that masked the inherent danger of a body of water." Majority Op., ¶ 13. Given that there is no reason Dempster would be aware of the child's presence and there was no hidden danger, there are no facts indicating the child is a licensee or that Dempster breached a duty. ¶6 Applying the law and our extant jurisprudence to these facts, it is my view that the outcome is the same regardless of whether the child is categorized as a trespasser or a licensee, and that the trial court correctly sustained the motion for summary judgment. This case presents a heart-wrenching tragedy, and while I take no satisfaction in dissenting from the Court's decision to remand this matter for a jury trial, I believe it is what the law requires.

616e5b7b-0551-44d5-896d-cf756a038396

Bayouth v. Dewberry

oklahoma

Oklahoma Supreme Court

BAYOUTH v. DEWBERRY2024 OK 42Case Number: 121897Decided: 06/11/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CHRISTOPHER BAYOUTH, Plaintiff/Appellant, v. RACHAEL DEWBERRY, EXECUTOR OF THE ESTATE OF LEONARD DAVID BERNSTEIN, DECEASED; and SHERYL DIANNE BERNSTEIN, Defendants/Appellees, and LIBERTY MUTUAL INS. COMPANY, Intervenor/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY; Honorable Anthony Bonner, District Judge ¶0 This matter is an appeal of summary judgment granted in favor of the estate of a deceased co-employee. The dispositive issue concerns whether, for purposes of the exclusive remedy provision under the Administrative Workers' Compensation Act, an employee, who injures another employee, must be acting within the course and scope of their employment when the incident occurs in order to receive the protection of the exclusive remedy provision. We answer in the affirmative. PREVIOUSLY RETAINED ON THIS COURT'S OWN MOTION; JUDGMENT OF THE DISTRICT COURT REVERSED; REMANDED FOR FURTHER PROCEEDINGS Joe Carson, Warhawk Legal, Oklahoma City, Oklahoma for Plaintiff/Appellant David Bernstein, Oklahoma City, Oklahoma for Defendant/Appellee Rachael Dewberry, as Executor of the Estate of Leonard David Berstein, Deceased Joseph T. Acquaviva, Jr., Wilson, Cain & Acquaviva, Oklahoma City, Oklahoma for Defendant/Appellee Rachael Dewberry, as Executor of the Estate of Leonard David Berstein, Deceased Kelsey R. Payton and Jason Goodnight, Franden, Farris, Quillin, Goodnight, Roberts & Ward, Tulsa, Oklahoma for Intervenor/Appellee COMBS, J.: ¶1 This matter concerns the district court's granting of summary judgment to the estate of a deceased co-employee who shot and injured another employee at work. The district court determined the exclusive remedy provision of Oklahoma's Administrative Workers' Compensation Act, 85A O.S. §§1 through 125, prevented Plaintiff's suit in district court against the co-employee. It held that, as a matter of law, the exclusive remedy provision protected the co-employee regardless of whether or not the co-employee was acting within his course and scope of employment when the shooting occurred. We disagree, and reverse and remand for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Unless otherwise stated, the following facts appear to be undisputed. The Plaintiff/Appellant, Christopher Bayouth, is a Financial Advisor employed by Morgan Stanley's Oklahoma City branch. Leonard Bernstein, an original defendant, was also employed by Morgan Stanley as a Financial Advisor. On June 30, 2022, Mr. Bernstein arrived at the Morgan Stanley office, went to the Plaintiff's office, and shot the Plaintiff with a gun. Mr. Bernstein was approximately ninety years old at the time and suffered from mental deficiencies/defects. He required daily medications to allow him to function normally. Mr. Bernstein left the Morgan Stanley office after the shooting and was subsequently arrested. The Plaintiff was transported to OU Medical Center and underwent surgery. Mr. Bernstein's medical records, dated after the shooting, confirm he: (1) was having paranoid delusions, (2) was confused, (3) was having anxiety, (4) was impulsive, (5) was delusional, (6) was using poor judgment, and (7) was impaired due to serious and persistent mental illness. At the time Mr. Bernstein shot the Plaintiff, he believed that the Plaintiff was trying to kidnap him and he believed he was acting in self-defense. His beliefs were an apparent product of his delusional state. ¶3 The employer maintains a Workers' Compensation policy of insurance through the Intervenor, Liberty Mutual Insurance Company. The Plaintiff was paid medical and indemnity benefits by Liberty. ¶4 On July 8, 2022, the Plaintiff filed a petition against Mr. Bernstein for willful and intentional acts, assault, battery, and intentional infliction of emotional distress. He prayed for damages in excess of $75,000.00, plus interest, costs, fees, punitive damages and all such other relief he may be entitled. He amended his petition on July 14, 2022, and added Mr. Bernstein's wife, Sheryl Dianne Bernstein, as a defendant. His cause of action against her was for negligence. Mr. Bernstein died of natural causes on July 22, 2022. On September 22, 2022, an executor was substituted as the party defendant in place of Mr. Bernstein. On April 10, 2023, the Plaintiff amended his petition a second time. The petitions alleged alternative causes of action. The willful and intentional acts cause of action in the original petition was replaced with a cause of action for negligence in the first and second amended petitions. In the second amended petition this negligence cause of action was against Mr. Bernstein's estate. The first and second amended petitions reflect Mr. Bernstein's actions, regarding negligence, were not intentional due to his delusional state of mind. The assault and battery cause of action and intentional infliction of emotional distress cause of action, however, alleged Mr. Bernstein acted intentionally. The second amended petition also included a new cause of action for false imprisonment. On August 23, 2023, a new executor of Mr. Bernstein's estate, Rachael Dewberry, was substituted as defendant in place of the previous executor. Sheryl Dianne Bernstein was also dismissed with prejudice from the suit on September 12, 2023. ¶5 On July 21, 2023, the previous executor filed a motion for summary judgment. The Defendant asserts the Plaintiff has received workers' compensation benefits and therefore the Plaintiff is prohibited from bringing this action because he has received the exclusive remedy under the AWCA. Section 5 of the AWCA provides that the "rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee . . . against the employer, or any . . . employee . . . of the employer on account of injury . . . ." 85A O.S. 2021, § 5(A). Section 3 of the AWCA also provides: Every employer and every employee, unless otherwise specifically provided in this act, shall be subject and bound to the provisions of the Administrative Workers' Compensation Act and every employer shall pay or provide benefits according to the provisions of this act for the accidental injury or death of an employee arising out of and in the course of his or her employment, without regard to fault for such injury, if the employee's contract of employment was made or if the injury occurred within this state. 85A O.S. 2021, § 3(A). In addition, the Defendant asserted none of the exceptions to the exclusive remedy provision apply in this case1 and the AWCA must be "strictly construed"2 by the courts. ¶6 In the Plaintiff's response he argues that for Mr. Bernstein to fall under the exclusive remedy provision of the AWCA, his actions must meet the co-employee immunity test. Citing Carroll v. District Court of fifteenth Judicial District Court, Cherokee County, 1978 OK 73, 579 P.2d 828. He alleged Mr. Bernstein does not meet this test because he was not working on the day of the incident nor was he in the course and scope of his employment with Morgan Stanley when he shot the Plaintiff;3 the shooting did not arise out of nor was it incidental to employment at Morgan Stanley. The Plaintiff notes the Defendant will not stipulate to this fact. The Defendant alleged in her reply brief that Mr. Bernstein was in the process of transitioning his book of business to the Plaintiff and often met with Plaintiff to discuss this transition. She contends the facts show that Mr. Bernstein walked into his place of employment during regular business hours to meet with the Plaintiff prior to the shooting. Therefore, Plaintiff asserts that at a minimum there is a disputed question of material fact as to whether Mr. Bernstein was in the course and scope of his employment with Morgan Stanley at the time of his shooting "and/or" whether the shooting was accidental. ¶7 In its December 12, 2023 Journal Entry of Judgment, the district court determined that pursuant to 85A O.S. 2021, § 3, an employer must provide benefits for the "accidental injury or death of an employee arising out of and in the course of his or her employment, without regard to fault for such injury . . . ." It found that the "course of his or her employment" language only referred to the injured employee, i.e., the injury must arise out of the injured employee's course of employment; therefore, the "focus is not whether [Mr. Bernstein] was acting within the course and scope of [his] employment at the time of the incident." It found the parties agree that the "Plaintiff was shot by [Mr. Bernstein] at Plaintiff's place of employment during regular business hours while Plaintiff was engaged in the course and scope of Plaintiff's employment." The court also found that the parties had agreed the injuries sustained were accidental and not intentional due to the decedent's delusional conditions.4 Therefore, the court determined there were no genuine issues of material fact, Plaintiff's exclusive remedy was through the AWCA, and none of the exemptions to the exclusive remedy applied. The estate's motion for summary judgment was sustained. The Plaintiff timely filed a petition in error with this Court and we previously retained the appeal. II. STANDARD OF REVIEW ¶8 The appellate standard of review of summary judgment is de novo. Boyle v. ASAP Energy, Inc., 2017 OK 82, ¶7, 408 P.3d 183; Tiger v. Verdigris Valley Electric Corp., 2016 OK 74, ¶13, 410 P.3d 1007. On appeal, this Court assumes plenary and non-deferential authority to reexamine a district court's legal rulings. John v. St. Francis Hospital, Inc., 2017 OK 81, ¶8, 405 P.3d 681; Stevens v. Fox, 2016 OK 106, ¶13, 383 P.3d 269; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081. ¶9 Summary judgment will be affirmed only if the Court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11; 160 P.3d 959; Wathor v. Mut. Assur. Adm'rs, Inc., 2004 OK 2, ¶4, 87 P.3d 559; Oliver v. Farmers Ins. Croup of Cos., 1997 OK 71, ¶6, 941 PP.2d 985. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the nonmoving party. Tiger, 2016 OK 74, ¶13, 410 P.3d at 1011. Even when the facts are not controverted, if reasonable persons may draw different conclusions from the facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, ¶20, 939 P.2d 1123, 1127. When genuine issues of material fact exist, summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Okla. State Bank & Trust Co., 1993 OK 117, ¶7, 860 P.2d 230, 233. Because the district court has the limited role of determining whether there are such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exp. Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730. ANALYSIS ¶10 The dispositive issue presented to this Court is whether, for purposes of the exclusive remedy provision under the Administrative Workers' Compensation Act, an employee, who injures another employee, must be acting within the course and scope of their employment when the incident occurs in order to receive the protection of the exclusive remedy provision. We answer in the affirmative. ¶11 The district court made no ruling on whether Mr. Bernstein was acting within the course and scope of his employment when he shot the Plaintiff. The court found that it did not matter because the provisions of 85A O.S. 2021, § 3, states benefits shall be provided "for the accidental injury or death of an employee arising out of and in the course of his or her employment." The court determined this language only applied to the injured employee being within the course and scope of their employment and therefore, "the focus is not whether the decedent was acting within the course and scope of the decedent's employment at the time of the incident." The parties clearly contest whether Mr. Bernstein was in the course and scope of his employment when he shot the Plaintiff. Therefore, we must determine, as a matter of law, whether in order to receive the protection of the exclusive remedy provision in 85A O.S. 2021, § 5, the co-employee who injures another employee must also have been within the course and scope of their employment when the incident occurs. ¶13 The Defendant argues none of the exemptions to the exclusive remedy provision apply. Unlike its predecessor, the AWCA requires the Act to be strictly construed5 and Section 5 of the Act "made crystal clear . . . that an employee cannot sue 'any . . . employee . . . of the employer on account of injury.'"6 The Defendant asserts the pre-AWCA workers' compensation law was similar in regard to the exclusive remedy and our pre-AWCA decisions denied employees from bringing an action against a co-employee outside of workers' compensation. Citing Carroll v. District Ct. of Fifteenth Jud. Dist., 1978 OK 73, 579 P.2d 828; Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84. In addition, the Defendant notes this Court, after the enactment of the AWCA, held a plaintiff who had received workers' compensation benefits was then barred from pursuing a third-party claim. Citing Kpiele-Poda v. Patterson-UTI Energy, Inc., 2023 OK 11, 525 P.3d 28. ¶14 The exclusive remedy provision is found in § 5(A) of the AWCA and provides: A. The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. 85A O.S. 2021, § 5(A). Although the Defendant argues Mr. Bernstein was within the course and scope of his employment when he shot the Plaintiff, she asserts the first sentence of § 5(A) provides him complete immunity. In other words, if one who causes an accident is an employee of the same employer as the injured employee, then they have complete immunity 24/7 for any accidental injuries caused on or off the job, i.e., outside of their course and scope of employment, so long as the injured employee was in the course and scope of their employment when injured. We disagree, and are compelled to look at the entire Act and not just § 5(A) in a vacuum in order to determine the legislative intent. Am. Airlines, Inc., v. State, ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶33, 341 P.3d 56, 64 ("The legislative intent will be ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each.") ¶15 First, neither of our holdings in Carroll and Deffenbaugh support the Defendant's position that the exclusive remedy provides complete immunity to a co-employee who injures another employee. In Carroll, a volunteer fireman (Carroll), during the course of his employment, parked his vehicle at the scene of a fire he was extinguishing and another volunteer fireman (Rhoads) was injured when Carroll's vehicle rolled into Rhoads. Carroll, 1978 OK 73, ¶4, 579 P.2d at 830. We acknowledged that in a majority of jurisdictions, a "negligent employee is immune from action when he is engaged in a pursuit or undertaking consistent with his work and which in some logical manner relates to or is incidental to employment." Id. ¶15, 579 P.2d at 832. We found that Carroll was properly on the scene and within his "scope of employment" when the "accidental injury occurred and was in the same employ as Rhoads when accidental injury occurred. Had Carroll received injury under these circumstances, his injury would have been compensable. Both parties were acting in furtherance of their duties when injury occurred and there was causal connection between this employment and Rhoads' injury." Id. ¶17, 579 P.2d at 832. We concluded that under these circumstances, exclusive jurisdiction was vested with the State Industrial Court and the district court had no jurisdiction to adjudicate Carroll's negligence claims. Id. Later, in Deffenbaugh, we emphasized the fact that in Carroll "both firemen were acting within the scope of their employment when the harmful event occurred." Deffenbaugh, 1990 OK 37, ¶8, 791 P.2d at 87 (emphasis in the original). Further, Deffenbaugh is not supportive of Defendant's arguments. That case concerned co-employees traveling from an "employment-related trip" when an accident occurred. Id. ¶23, 791 P.2d at 90. The plaintiff, co-employee, sued the driver-employee. We held that the exclusive remedy provision abrogated "the common-law right of action by one employee against another for accidental, job-related injuries." Id. ¶17, 791 P.2d at 89. In affirming the district court's granting of summary judgment in favor of the driver-employee, we noted the plaintiff admitted the injurious event did occur "in the course and scope of their employment." Id. ¶26, 791 P.2d at 91. Deffenbaugh is not supportive of Defendant's contention that only the injured employee must be within the course and scope of their employment when the injury occurs because in that case we determined both employees were acting within the course of their common employment when the injury occurred. Id. ¶16, 791 P.2d at 89. ¶16 Likewise, Kipele-Poda, is not supportive of Defendant's arguments. In Kipele-Poda, an employee, injured in the course of their employment, brought a tort action in district court while simultaneously bringing a workers' compensation claim. We affirmed the district court's dismissal for lack of subject matter jurisdiction. 2023 OK 11, ¶23, 525 P.3d at 36. We determined under the AWCA the exclusive remedy does not apply to an employer if he or she fails to secure payment of compensation or if the injury was caused by an intentional tort committed by the employer. Id. ¶15, 525 P.3d at 34. If either exception exists then 85A O.S. § 5(I) allows the injured employee to maintain an action before the "Commission or in the district court, but not both." Id. The facts of Kipele-Poda are distinguishable from the present matter because here the Plaintiff is pursuing a suit against a co-employee and not his employer. ¶17 In Carroll, 85 O.S. 1971, § 12, was the exclusive remedy provision for workers' compensation. It provided in pertinent part: The liability prescribed in the last preceding section shall be exclusive and in place of all other liability of the employer and any of his employees . . . . The language in Deffenbaugh, was similar, it provided in pertinent part: The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees . . . . 85 O.S. Supp. 1984, § 12. The exclusive remedy provisions in both versions are not substantially different from that found in the exclusive remedy provision of the AWCA (85A O.S. § 5(A)) which states in pertinent part: The rights and remedies granted to an employee subject to the provisions of the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies of the employee . . . against the employer, or any . . . employee . . . of the employer on account of injury, illness, or death. In analyzing legislative intent, words adopted from other sources are generally presumed, without contrary intent, to adopt the "body of learning from which it was taken and the meaning its use will convey to the judicial mind." Evans v. United States, 504 U.S. 255, 259 (1992).7 We have also adopted this rule when laws are adopted from other jurisdictions. Sudbury v. Deterding, 2001 OK 10, ¶8, 19 P.3d 856, 858 ("The general rule is that when a statute has been adopted from another state, the judicial construction of that statute by the highest court of the jurisdiction from which the statute is taken accompanies it, and is treated as incorporated."). This should apply no less when the Legislature adopts Oklahoma laws interpreted by this Court into new statutes without indicating a contrary intent. Both Carroll and Deffenbaugh support a finding that the co-employee who causes the injury must be doing something job-related in order to receive the protection of the exclusive remedy provision. Other provisions of the AWCA support this interpretation. "Employee," as defined in the AWCA, means "any person, including a minor, in the service of an employer . . . ." 85A O.S. 2021, § 2(18)(a).8 The definition does not distinguish between employees who are injured on the job from employees who cause the injury. Both must be in the "service" of the employer. A definition of "service" is not found under this section; however, the Legislature added a new definition, "[c]ourse and scope of employment," when it enacted the AWCA. This definition provides: 13. "Course and scope of employment" means an activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer. This term does not include: a. an employee's transportation to and from his or her place of employment, b. travel by an employee in furtherance of the affairs of an employer if the travel is also in furtherance of personal or private affairs of the employee, c. any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer unless the employer owns or maintains exclusive control over the area, or d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility or in an area owned by or exclusively controlled by the employer and the work break is authorized by the employee's supervisor; 85A O.S. 2021, § 2(13). Both definitions provide exceptions which make it clear that the protections provided under the AWCA were not intended to extend to an employee 24/7 without limitations. ¶18 We hold, the legislative intent under the AWCA is to provide protections to the injured employee as well as to a co-employee who causes the injury when they are acting within the "course and scope of [their] employment." This answers the dispositive question of law before us. The parties disagree on whether Mr. Bernstein was acting within the "course and scope of [his] employment" when he shot the Plaintiff and the district court never made a ruling on this issue. Therefore, we reverse the district court's granting of summary judgment and remand for further proceedings. CONCLUSION ¶19 An employee was shot by a co-employee in their place of employment. The parties disagree whether the co-employee was acting within the course and scope of his employment when the incident occurred. The district court granted summary judgment in favor of the estate of the co-employee, holding that only the injured employee must be acting within the course and scope of their employment when the incident occurs under the AWCA and not the co-employee. After reviewing the relevance of our previous decisions and the text of the AWCA, we hold that the legislative intent requires an employee seeking the exclusive remedy protections provided under the AWCA to have been acting within the course and scope of their employment when the incident occurred. The district court's Journal Entry of Judgment is reversed, and the matter is remanded for further proceedings. PREVIOUSLY RETAINED ON THIS COURT'S OWN MOTION; JUDGMENT OF THE DISTRICT COURT REVERSED; REMANDED FOR FURTHER PROCEEDINGS Kauger, Winchester, Edmondson, Combs, Gurich, Darby, JJ., concur; Kane, C.J., concurs in result; Rowe, V.C.J. and Kuehn, J. (by separate writing), dissent. FOOTNOTES 1 85A O.S. 2021, § 5(B): B. Exclusive remedy shall not apply if: 1. An employer fails to secure the payment of compensation due to the employee as required by this act. An injured employee, or his or her legal representative in case death results from the injury, may, at his or her option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of the injury or death; or 2. The injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer's conduct shall not constitute an intentional tort. The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. The issue of whether an act is an intentional tort shall be a question of law. 2 The successor executor asserted in her reply brief that in 2011 and again in 2013, when the Legislature created the Administrative Workers' Compensation Act, the Legislature specifically provided that the Acts shall be strictly construed. See 85 O.S. 2011, § 1.1, and 85A O.S. Supp. 2013, § 1. 3 The Plaintiff attached to his supplemental brief exhibits of deposition testimony to support his arguments i.e., Mr. Bernstein was not working on the day of the shooting and nothing he did that day was derived as a result of work-related-activities. 4 On appeal, the Plaintiff contests this determination, noting that he presented alternative causes of action and only one, negligence, indicated that Mr. Bernstein's actions were unintentional due to his delusional state. 5 The short title provided in the AWCA, 85A O.S. Supp. 2013, § 1, provides: Sections 1 through 106 and 150 through 168 of this act shall be known and may be cited as the "Administrative Workers' Compensation Act". The provisions of the Administrative Workers' Compensation Act shall be strictly construed. 6 Def. Reply Br. at 2. 7 The Court determined: It is a familiar "maxim that a statutory term is generally presumed to have its common-law meaning." Taylor v. United States, 495 U.S. 575, 592, 110 S. Ct. 2143, 2155, 109 L. Ed. 2d 607 (1990). As we have explained: "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 249--250, 96 L. Ed. 288 (1952). Evans, 504 U.S. at 259-60. The Court noted: Or, as Justice Frankfurter advised, "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 537 (1947). Evans, 504 U.S. at 260, n.3. 8 85A O.S. 2021, §2(18): a. "Employee" means any person, including a minor, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer and excluding one who is required to perform work for a municipality or county or the state or federal government on having been convicted of a criminal offense or while incarcerated. "Employee" shall also include a member of the Oklahoma National Guard while in the performance of duties only while in response to state orders and any authorized voluntary or uncompensated worker, rendering services as a firefighter, law enforcement officer or emergency management worker. Travel by a police officer, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment. b. The term "employee" shall not include: (1) any person for whom an employer is liable under any Act of Congress for providing compensation to employees for injuries, disease or death arising out of and in the course of employment including, but not limited to, the Federal Employees' Compensation Act, the Federal Employers' Liability Act, the Longshore and Harbor Workers' Compensation Act and the Jones Act, to the extent his or her employees are subject to such acts, (2) any person who is employed in agriculture, ranching or horticulture by an employer who had a gross annual payroll in the preceding calendar year of less than One Hundred Thousand Dollars ($100,000.00) wages for agricultural, ranching or horticultural workers, or any person who is employed in agriculture, ranching or horticulture who is not engaged in operation of motorized machines. This exemption applies to any period of time for which such employment exists, irrespective of whether or not the person is employed in other activities for which the exemption does not apply. If the person is employed for part of a year in exempt activities and for part of a year in nonexempt activities, the employer shall be responsible for providing workers' compensation only for the period of time for which the person is employed in nonexempt activities, (3) any person who is a licensed real estate sales associate or broker, paid on a commission basis, (4) any person employed by an employer with five or fewer total employees, all of whom are related within the second degree by blood or marriage to the employer, all of whom are dependents living in the household of the employer, or all of whom are a combination of such relatives and dependents. If the employer is not a natural person such relative shall be related within the second degree by blood or marriage to a person who owns fifty percent (50%) or more of the employer, or such dependent shall be in the household of a person who owns fifty percent (50%) or more of the employer, (5) any person employed by an employer which is a youth sports league which qualifies for exemption from federal income taxation pursuant to federal law, (6) sole proprietors, members of a partnership, individuals who are party to a franchise agreement as set out by the Federal Trade Commission franchise disclosure rule, 16 CFR 436.1 through 436.11, members of a limited liability company who own at least ten percent (10%) of the capital of the limited liability company or any stockholder-employees of a corporation who own ten percent (10%) or more stock in the corporation, unless they elect to be covered by a policy of insurance covering benefits under the Administrative Workers' Compensation Act, (7) any person providing or performing voluntary service who receives no wages for the services other than meals, drug or alcohol rehabilitative therapy, transportation, lodging or reimbursement for incidental expenses except for volunteers specifically provided for in subparagraph a of this paragraph, (8) a person, commonly referred to as an owner-operator, who owns or leases a truck-tractor or truck for hire, if the owner-operator actually operates the truck-tractor or truck and if the person contracting with the owner-operator is not the lessor of the truck-tractor or truck. Provided, however, an owner-operator shall not be precluded from workers' compensation coverage under the Administrative Workers' Compensation Act if the owner-operator elects to participate as a sole proprietor, (9) a person referred to as a drive-away owner-operator who privately owns and utilizes a tow vehicle in drive-away operations and operates independently for hire, if the drive-away owner-operator actually utilizes the tow vehicle and if the person contracting with the drive-away owner-operator is not the lessor of the tow vehicle. Provided, however, a drive-away owner-operator shall not be precluded from workers' compensation coverage under the Administrative Workers' Compensation Act if the drive-away owner-operator elects to participate as a sole proprietor, and (10) any person who is employed as a domestic servant or as a casual worker in and about a private home or household, which private home or household had a gross annual payroll in the preceding calendar year of less than Fifty Thousand Dollars ($50,000.00) for such workers; KUEHN, J., with whom Rowe, V.C.J., joins, dissenting: ¶1 Bayouth was injured at work when co-worker Bernstein, while in a delusional state, shot him. It is undisputed that Bayouth suffered an injury arising out of and in the course of his employment, and filed for and received benefits under the Administrative Workers' Compensation Act. The only issue before this Court is whether he may separately pursue a suit against Bernstein in district court. The district court found that, because Bayouth was injured during the course of his employment and no exceptions applied, his AWCA claim against Employer was his exclusive remedy, and he could not sue Bernstein personally. The Majority finds that the AWCA would provide the exclusive remedy if Bernstein were acting within the course and scope of his employment, but if he was not then he may be sued. I disagree with both conclusions. The Section 5(A) exclusivity provision does not apply to Bernstein's acts at all, and Bayouth may sue him in district court. ¶2 Title 85A, Section 3 provides that the AWCA applies to every employer and employee for a claim for accidental injury or death of an employee arising out of and in the course of his or her employment. 85A O.S.Supp.2019, § 3(A). Section 5(A) of Title 85A provides that the AWCA shall be the exclusive remedy available to the employee, with two exceptions which do not apply here. 85A O.S.Supp.2019, § 5(A). Section 5(A) also provides that, for purposes of exclusivity, negligent acts of a co-employee may not be imputed to the employer. 85A O.S.Supp.2019, § 5(A). The arguments in this case arise from the perceived tension that occurs when an employee injures a co-worker. If a random stranger injures a person who is on the job, the injured employee may file for benefits under the AWCA and also sue the stranger personally for causing the injury. Where the injury is caused by a co-employee, I believe that under the plain language of the statute the result is the same. ¶3 The AWCA represents a bargain between employers and employees: an employer will compensate a worker who is injured on the job, but generally the worker must accept that as her exclusive remedy. This offers the worker redress for her injury but protects the employer from employee double-dipping -- ensuring the employer will not be liable for both the workers' compensation claim and a separate suit in district court. Given this purpose, the exclusivity provision in Section 5A is designed to protect the employer. Section 5(A) provides that the AWCA is the injured employee's exclusive remedy for actions against the employer or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer responsible for the claimant's injury. 85A O.S.Supp.2019, § 5(A). By including these categories of persons connected with an employer, the Legislature ensured that where an employer requires a co-employee, etc., to take an action resulting in a compensable injury, Section 5(A) exclusivity will protect that co-employee as it would the employer. Clearly, Bayouth cannot directly sue Employer in district court for the injury covered under his AWCA claim. And, because a co-employee's negligent acts may not be imputed to Employer, Bayouth cannot get around this by using the fact of Bernstein's employment to sue Employer. 85A O.S.Supp.2019, § 5(A). That is, Section 5(A) protects Employer both from suit against itself and from suit over the consequences of Bernstein's acts. ¶4 But Section 5(A) says nothing about immunizing Bernstein himself from the consequences of his acts. If a co-employee's negligent acts may not be imputed to an employer, thus affording him Section 5(A) protection, where does that leave the co-employee? He's in exactly the same position as anyone else who commits a negligent act: he can be sued in district court. This result is consistent with the legislative purpose of the AWCA. It furthers the bargain between employer and employee while protecting the employer from suit in district court. And it is consistent with the AWCA's focus on the employer and injured employee; the text of the AWCA has no more concern for a co-employee than it has for any other person or entity that is responsible for a compensable injury. ¶5 By contrast, the Majority holds that a co-employee may sometimes be sued, based on whether she is acting within the course and scope of her employment. In doing so the Majority fails to pay attention to either the plain language of the statute or the primary purposes of the AWCA. The Majority focuses not on the employer or the injured employee, but on the co-employee who caused the injury. This stands the AWCA on its head. And the only time the AWCA is concerned with on-the-job status is in making the initial Section 3(A) determination -- was the injured employee on the job at the time of the injury? If so, she has a compensable claim, and we move on. The exclusivity provisions in Section 5(A) neither mention on-the-job status, nor are dependent on it. The Majority would add into Section 5(A) a determination of on-the-job status that just isn't there. ¶6 The Majority suggests that where co-employees are involved we have, practically speaking, held you must decide if both employees are acting within the course and scope of their employment before you can apply the Section 5(A) exclusivity provision. The Opinion discusses three cases: Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84; Carroll v. District Court of Fifteenth Judicial District, 1978 OK 73, 569 P.2d 828; and Kpiele-Poda v. Patterson-ITA Energy, Inc., 2023 OK 11, 525 P.3d 28. While Deffenbaugh and Carroll each involved an injury caused by a co-employee, neither case required us to make a determination of on-the-job status before determining whether Section 5(A) applied. More importantly, each case was decided well before the AWCA was enacted. Those decisions interpret workers' compensation statutory schemes with different provisions, including different exclusivity provisions. They simply do not apply to the current statutory language discussed above. And I agree with the Majority that Kpiele-Poda doesn't apply here, but for a different reason. In Kpiele-Poda the AWCA claim was brought under 85A O.S.Supp.2014, § 5(I), a completely different provision, and did not discuss Section 5(A) exclusivity. Kpiele-Poda doesn't apply because the Section 5(I) choice-of-forum clause doesn't apply here. ¶7 The Majority states that, if the Section 5(A) exclusivity provision applies, any employee, on or off the job, who accidentally injures a co-worker on the job has "complete immunity 24/7." Unsurprisingly, the Majority finds that the Legislature did not intend that result. Certainly the Legislature did not intend that result, and the statute does not require it. Under Section 5(A), if an employer requires a co-employee to take a negligent action resulting in another employee's injury, that co-employee is protected by the exclusivity provision to the same extent the employer is. On the other hand, when an employee negligently injures a co-worker, that action is not imputed to Employer under Section 5(A), and the exclusivity provision does not prevent suit against the responsible co-employee. Boiled down, the Majority opinion appears to be driven by a feeling that Bernstein shot Bayouth and it is unfair to foreclose Bayouth from suing Bernstein as a result. I agree. And the statute allows Bayouth to bring that suit. There is no need to discover whether Bernstein was acting in the course or scope of his employment, as the Majority requires. Instead, I would reverse the district court and remand for further proceedings. I dissent.

2d08851a-d089-42df-8acd-c15c7c0d287c

Stitt v. Treat

oklahoma

Oklahoma Supreme Court

STITT v. TREAT2024 OK 21Case Number: 121497Decided: 04/02/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. THE HONORABLE J. KEVIN STITT, Governor of the State of Oklahoma, in his official capacity, Petitioner, v. THE HONORABLE GREG TREAT, Senate President Pro Tempore, in his official capacity, and THE HONORABLE CHARLES MCCALL, Speaker of The House, in his official capacity, Respondents. ORIGINAL PROCEEDING FOR DECLARATORY RELIEF ¶0 Petitioner brought this action seeking declaratory relief that Respondents lacked authority to validly pass two bills relating to Tribal compacts on behalf of the State. We assume original jurisdiction and deny declaratory relief. ORIGINAL JURISDICTION ASSUMED; DECLARATORY RELIEF DENIED. Trevor S. Pemberton, Remington D. Dean, OFFICE OF GOVERNOR J. KEVIN STITT, Oklahoma City, Oklahoma for Petitioner Gentner Drummond, Garry M. Gaskins, II, Joseph M. Watt, OFFICE OF ATTORNEY GENERAL, Oklahoma City, Oklahoma and V. Glenn Coffee, Denise Lawson, GLENN COFFEE & ASSOCIATES, PLLC, Oklahoma City, Oklahoma for Respondents OPINION ROWE, V.C.J.: Petitioner, the Honorable J. Kevin Stitt, Governor of the State of Oklahoma, requests the Court to assume original jurisdiction and declare Senate Bill 26x and House Bill 1005x invalid under Oklahoma law. BACKGROUND ¶1 In 1991, the United States Supreme Court held that the State of Oklahoma could collect taxes on tobacco products sold on Indian lands to non-tribal members and held that "States may also enter into agreements with the tribes to adopt a mutually satisfactory regime for the collection of this sort of tax." Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 514 (1991). Two years later, the U.S. Supreme Court held that Oklahoma lacked jurisdiction to impose taxes on vehicles owned by Indians who live and garage their vehicles in Indian country. Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114, 128 (1993). In light of these decisions, the State of Oklahoma, through the Governor, negotiated and entered into compacts with Tribal nations regarding excise taxes on tobacco products and motor vehicle licensing and registration fees in Indian country.1 ¶2 The current dispute revolves around various compacts negotiated and entered into by then-Governor Mary Fallin and the Tribes on behalf of the State of Oklahoma in 2013.2 The first set of compacts govern the excise tax on tobacco products sold by the Chickasaw Nation and the Choctaw Nation ("the Tobacco Compacts"), which were set to expire December 31, 2023, unless extended by agreement between the State and Tribes.3 The second set of compacts govern motor vehicle licensing and registration of vehicles located inside and outside of the jurisdictional area of the Cherokee Nation ("the Motor Vehicle Compacts").4 Unlike the Tobacco Compacts, the Motor Vehicle Compacts automatically renewed on August 16, 2023, pursuant to the terms of the compacts. In an attempt to renegotiate the terms of the Tobacco Compacts, Governor Stitt ("the Governor") extended offers to the Tribes which were not accepted, leaving the compacts unchanged. ¶3 On May 17, 2023, through the filing of a Joint Order, the Oklahoma Legislature ("the Legislature") convened a special session to run concurrently with the regular session.5 The stated purpose of the special session was to discuss: (1) the appropriation of funds for the annual state budget for years 2023 through 2024; (2) legislation related to implementing and administering budget-related funds; and (3) expenditure of federal funds received under the American Rescue Plan Act of 2021.6 During the special session, the Legislature passed two bills related to State-Tribal compacts--Senate Bill 26x ("S.B. 26x") and House Bill 1005x ("H.B. 1005x"). ¶4 S.B. 26x, codified as 68 O.S. § 346.1, offers any Tribe that is a party to an existing State-Tribal tobacco products compact to extend the expiration of the compact to December 31, 2024.7 Section 1 of S.B. 26x reads as follows: A. The Legislature finds that: 1. As codified in Section 1221 of Title 74 of the Oklahoma Statutes, Oklahoma's standing policy is to work in a spirit of cooperation with all federally recognized Indian tribes in ENR. S. B. NO. 26x Page 2 furtherance of federal policy for the benefit of both the State of Oklahoma and Tribal governments; 2. Oklahoma has benefited from its implementation of this policy through, among other things, the formation and entry of intergovernmental agreements or compacts with Tribal nations on a variety of subjects; and 3. As authorized by Section 346 of Title 68 of the Oklahoma Statutes, Oklahoma entered numerous compacts with Tribal nations relating to taxation of tobacco product sales, which agreements have benefited all parties by reducing intergovernmental disputes, increasing Oklahoma tax revenues, and providing a stable environment for Tribal and non-Tribal economic activity. B. Consistent with the Legislature's intent declared in subsection B of Section 346 of Title 68 of the Oklahoma Statutes, the State of Oklahoma offers the following supplemental term to any Tribe that is party to a State-Tribal tobacco products sales tax compact entered pursuant to Section 346 of Title 68 of the Oklahoma Statutes or otherwise which was in effect on January 1, 2023, but is set to expire prior to December 31, 2024: SUPPLEMENTAL TERM TO TOBACCO PRODUCTS EXCISE TAX COMPACT Between the [NAME OF TRIBE] and the STATE OF OKLAHOMA The tobacco products excise tax compact between the [NAME OF TRIBE] and the STATE OF OKLAHOMA is hereby affirmed and shall be deemed in effect until December 31, 2024, and restored, and any action to unilaterally terminate the compact prior to that date shall be null and void. C. Further and also consistent with such intent, the State of Oklahoma offers the following restoration of and supplemental term to any Tribe that is party to a State-Tribal tobacco products excise tax compact entered pursuant to Section 346 of Title 68 of the Oklahoma Statutes or otherwise and which was in effect as of January 1, 2019, but which expired prior to the effective date of this act: RESTORATION OF AND SUPPLEMENTAL TERM TO TOBACCO PRODUCTS EXCISE TAX COMPACT TERM Between the [NAME OF TRIBE] and the STATE OF OKLAHOMA Notwithstanding its expiration prior to the effective date of this act, the tobacco products excise tax compact between the [NAME OF TRIBE] and the STATE OF OKLAHOMA in effect on January 1, 2019, is hereby affirmed and restored to effect as of July 1, 2023, and shall remain in effect until December 31, 2024, and any action to unilaterally terminate the compact prior to that date shall be null and void. D. Tribal acceptance of an offer codified in either subsection B or C of this section shall be indicated by letter from the Tribal party's governing body or official reciting the terms set forth above and delivered to the Oklahoma Tax Commission. Such letter shall then be filed with the Secretary of State. S.B. 26x, 59th Leg., 1st Extra. Sess. (May 17, 2023); 68 O.S. § 346.1. ¶5 H.B. 1005x, codified as 74 O.S. 1221.B, offers any Tribe that is a party to an existing State-Tribal motor vehicle licensing and registration compact to extend the expiration of the compact to December 31, 2024.8 Section 1 of H.B. 1005x reads as follows: A. The Legislature finds that: 1. Oklahoma has benefited from its implementation of the policy set forth in Section 1221 of Title 74 of the Oklahoma Statutes through, among other things, the formation and entry of intergovernmental agreements or compacts with Tribal nations on a variety of subjects; 2. As an exercise of executive authority consistent with this codified policy, the Oklahoma Governor formed and entered certain Tribal-State agreements relating to motor vehicle licensing and registration matters, which agreements have benefited all parties by reducing intergovernmental disputes and increasing revenues available for roads, bridges, schools, and other valuable community infrastructure. B. The State of Oklahoma now offers the following supplemental term to any Tribe that was, as of January 1, 2023, a party to a motor vehicle licensing or registration agreement previously executed by an Oklahoma Governor: AFFIRMATION AND EXTENSION OF MOTOR VEHICLE LICENSING/REGISTRATION COMPACT Between the [NAME OF TRIBE] and the STATE OF OKLAHOMA The motor vehicle licensing or registration and license tag agreement formed and entered by the Oklahoma Governor and the [NAME OF TRIBE] is hereby affirmed as a compact between the STATE OF OKLAHOMA and [NAME OF TRIBE] and shall be in effect until December 31, 2024, and any action to unilaterally terminate or to issue written notice of the compact's nonrenewal prior to that date shall be null and void. C. Tribal acceptance of this offer shall be indicated by letter from the Tribal party's governing body or official reciting the terms set forth above and delivered to the Oklahoma Tax Commission. Such acceptance letter, including the terms set forth above and delivered to the Oklahoma Tax Commission, shall then be filed with the Oklahoma Secretary of State. H.B. 1005x, 59th Leg., 1st Extra. Sess. (May 17, 2023); 74 O.S. § 1221.B. ¶6 The Governor vetoed both S.B. 26x and H.B. 1005x. Despite the Governor's veto, both S.B. 26x and H.B. 1005x became law on July 31, 2023, when the Oklahoma House of Representatives and the Oklahoma Senate voted to override the Governor's veto.9 ¶7 On July 31, 2023, the Governor filed an Application to Assume Original Jurisdiction and Petition for Declaratory Relief in this Court, requesting declaratory judgment that both S.B. 26x and H.B. 1005x are invalid on three grounds. First, the Governor alleges that the bills are the products of an unlawful concurrent special session of the Legislature and that the call of the special session failed to specifically reference the compacts. Second, the Governor argues that the actions of the Legislature in passing these bills violates Article IV, Section 1 of the Oklahoma Constitution by exercising powers that properly belong to the Executive branch. Third, the Governor argues that the bills contradict his exclusive authority to negotiate State-Tribal compacts that is conferred upon him by other statutes. DISCUSSION I. The Process by Which the Legislature Passed S.B. 26x and H.B. 1005x Did Not Violate the Constitution. ¶8 The Governor's foremost argument pertains to the special session convened on May 17, 2023. The Governor contends that the language of the Oklahoma Constitution implies that a special session cannot run simultaneously with a regular session. The Governor argues that since S.B. 26x and H.B. 1005x were enacted during a concurrent special session they should be deemed invalid. The Legislature asserts that nothing in the Oklahoma Constitution prohibits a special session from running concurrent with a regular session. ¶9 Additionally, the Governor urges us to conclude that the Legislature exceeded the call of the special session by passing S.B. 26x and H.B. 1005x. According to the Governor, the Oklahoma Constitution requires that the call of the special session outline its specific purpose, and because State-Tribal compacts were not specifically mentioned in the call, S.B. 26x and H.B. 1005x should be invalidated. Conversely, the Legislature contends that given the significant impact State-Tribal compacts have on the state's budget, and that S.B. 26x and H.B. 1005x are primarily aimed at state revenue, these bills fall within the scope of legislation related to the implementation and administration of budget-related funds, as outlined in the call of the special session. A. The Concurrent Special Session was Constitutional. ¶10 The Governor contends that the Legislature's concurrent special session is unconstitutional. Emphasizing the balance of powers, the Governor asserts that while the constitution vests legislative authority in the Legislature, this authority is also constrained by the constitution to ensure the prevention of abuses of legislative power.10 The Governor maintains that the concurrent special session was an overstep of the Legislature's constitutional limits. Further, the Governor argues that because the Oklahoma Constitution does not authorize a special session concurrent with the regular session, and here the Legislature called a concurrent special session, any bills passed during it are invalid. In support of his argument, the Governor relies on Simpson v. Hill where we stated that "[i]n the absence of a constitutional provision authorizing the Legislature of the state to convene itself, it cannot do so, and any acts or intended acts of a member, or members thereof, if so assembled, are without authority of law, whether it be for legislative or inquisitorial purposes." Simpson v. Hill, 1927 OK 453, ¶ 0, 263 P. 635, 635-36. ¶11 We are not inclined to inject ourselves into the business of the Legislature unless we find that a legislative act is "plainly and clearly within the express prohibitions and limitations fixed by the Constitution." Sanchez v. Melvin, 1966 OK 116, ¶ 10, 418 P.2d 639, 641. In examining the constitutionality of legislative action, we look to the constitution to determine whether the act is prohibited. We do not look to the Constitution to determine whether the Legislature is authorized to do an act but rather to see whether it is prohibited. If there is any doubt as to the Legislature's power to act in any given situation, the doubt should be resolved in favor of the validity of the action taken by the Legislature. Restrictions and limitations upon legislative power are to be construed strictly, and are not to be extended to include matters not covered or implied by the language used. Tate v. Logan, 1961 OK 136, ¶ 19, 362 P.2d 670, 674-75. ¶12 We find the Governor's reliance on Simpson inapposite. Any instructive value taken from Simpson is limited as that case was decided more than 50 years before the passage of Article V, § 27A, which now allows the Legislature to call a special session subject to the requirements stated in the text of our constitution. Okla. Const. Art. V, § 27A(1) ("The Legislature may be called into special session by a written call for such purposes as may be specifically set out in the call, signed by two-thirds (2/3) of the members of the Senate and two-thirds (2/3) of the members of the House of Representatives when it is filed with the President Pro Tempore of the Senate and the Speaker of the House of Representatives who shall issue jointly an order for the convening of the special session.") ¶13 Additionally, the Governor points to an attorney general opinion which states "[t]he Constitution does not place a time restriction on when a special session may be called by the Legislature and contemplates that a special session may be convened at some time other than during a regular session." 2013 OK AG 8, ¶ 20. Although an attorney general opinion is persuasive authority for the court, we are not bound by the opinion of an attorney general. Edwards v. Bd. of Cnty. Comm'rs of Canadian Cnty., 2015 OK 58, ¶ 15, 378 P.3d 54, 60. In the opinion relied upon by the Governor, the attorney general was asked to address whether the Legislature could convene a special session in the interim period between after the general election and before the organizational session. 2013 OK AG 8, ¶ 16. In response, the attorney general stated that the Legislature may convene a special session during that interim period so long as other constitutional requirements were met. Id. at ¶ 20. The attorney general continued on to state that where legislative leadership has not yet been elected, the Legislature is unable to call itself into special session because it would be unable to fulfill the constitutional requirement that the leaders of both houses must issue a joint order convening the special session. Id. at ¶¶ 21-23. However, where there is an elected President Pro Tempore and Speaker of the House--as there is here--so long as the Legislature satisfies the remaining conditions of Okla. Const. art. V, § 27A(1), there is no prohibition on the Legislature's ability to call a special session.11 The Governor further argues that special sessions are 'extra' and 'meant for extraordinary circumstances.'12 Though we agree with the Governor that special sessions are meant to be extraordinary as compared to a regular session, we find no provisions in our constitution expressly preventing the Legislature from convening a concurrent special session. ¶14 Given the absence of any constitutional provision expressly prohibiting the Legislature from convening a concurrent special session, we cannot find the concurrent special session plainly and clearly violated any express prohibitions set by our constitution. B. The Consideration of S.B. 26x and H.B. 1005x Did Not Exceed the Call of the Special Session. ¶15 The Governor additionally posits that even if the concurrent special session were constitutional, S.B. 26x and H.B. 1005x are void because they plainly exceed the call of the session. Article V, § 27A states "[t]he Legislature may be called into special session by a written call for such purposes as may be specifically set out in the call. . . ." Okla. Const. Art. V, § 27A(1). ¶16 Our jurisprudence requires that when construing constitutional provisions granting the Legislature the authority to act, we must give great weight to the Legislature's interpretation of those provisions. Texas Co v. State ex rel. Coryell, 1947 OK 53, ¶ 11, 180 P.2d 631, 635. We presume that every statute passed by the Legislature is constitutional and that the Legislature observed the requirements in our constitution with great caution when enacting a statute. Way v. Grand Lake Ass'n, Inc., 1981 OK 70, ¶ 39, 635 P.2d 1010, 1017; Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶ 27, 188 P.3d 177, 186. As we stated in Dobbs v. Bd. Of Cnty. Cmm'rs of Okla. Cnty., "[t]he people of the state have...the right to limit the power of the state legislature, and any limitation on the power...should arise only upon specific declarations and should be strictly construed against implied limitations and any doubt arising should be resolved in favor of the power of the Legislature." Dobbs v. Bd. Of Cnty. Cmm'rs of Okla. Cnty., 1953 OK 159, ¶ 16, 257 P.2d 802, 806. In our construction of constitutional restrictions placed on the Legislature, "a statute will be upheld against any constitutional attack unless it is clearly and overtly inconsistent with the constitution." Glasco, ¶ 27, 188 P.3d at 286. ¶17 The Legislature's call of the special session included the appropriation of funds for the annual state budget and Legislation related to implementing and administering budget-related funds.13 The Legislature notes that the fiscal analysis for both S.B. 26x and H.B. 1005x indicate that without continuation or extension of the Tobacco and Motor Vehicle Compacts, there would be a significant decrease in state revenue, thereby impacting the state budget.14 The terms of the bills at issue make clear that the Tobacco and Motor Vehicle Compacts, which stand to be extended by S.B. 26x and H.B. 1005x, will have an impact on revenue collection and the budget process for the State. For example, S.B. 26x states that the Tobacco Compacts entered into by the State "have benefited all parties by reducing intergovernmental disputes, increasing Oklahoma tax revenues, and providing a stable environment for Tribal and non-Tribal economic activity." 68 O.S. § 346.1(A)(3). Further, the Legislature contends that the State's budget will undoubtedly be affected if the Tobacco and Motor Vehicle Compacts are allowed to expire. Similarly, H.B. 1005x states that the Motor Vehicle Compacts "have benefited all parties by reducing intergovernmental disputes and increasing revenues available for roads, bridges, schools and other valuable community infrastructure." 74 O.S. § 1221.B(A)(2). As noted by the bill summaries for S.B. 26x and H.B. 1005x, the state budget is affected by the revenue generated from an extension of the Tobacco and Motor Vehicle Compacts.15 The State-Tribal compacts and state revenue flowing from these compacts fall--at the very least indirectly--within the subject matter stated in the call of the special session--that being the implementation and administration of budget-related funds. ¶18 We find no reason to invalidate S.B. 26x and H.B. 1005x, as the two bills are not clearly and overtly violative of the constitutional requirements for the call of the special session--the offered extension of State-Tribal compacts falls within the scope of legislation related to the implementation and administration of budget-related funds, as outlined in the call of the special session. Accordingly, the Legislature's consideration of S.B. 26x and H.B. 1005x during the special session was constitutional. ¶19 Although we find that S.B. 26x and H.B. 1005x are within the subject matter outlined in the call of the special session, it is imperative to underscore that our present holding does not diminish the significance of the requirements set forth by Article V, § 27A. It should be noted that this is a very fact-specific inquiry, and our holding today should not be misconstrued to mean that the specificity requirement of Article V, § 27A does not impose a meaningful constraint on the Legislature. II. The Governor's Authority to Negotiate and Enter into Compacts with Tribes is Vested by Statute, not the Constitution. ¶20 The Oklahoma Constitution states: The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of peace throughout the State. Okla. Const. art. VI, § 8. The Governor argues that the authority to negotiate State-Tribal compacts is exclusively vested with the Executive branch by the Oklahoma Constitution. More specifically, the Governor argues that the language of Article VI stating the Governor shall conduct the State's "intercourse and business...with other states and with the United States" specifically vests the authority to negotiate Tribal compacts with the Executive branch. Okla. Const. art. VI, § 8. The Governor reads Article VI as vesting him with the exclusive authority to negotiate compacts with the Tribes. ¶21 Though Article VI, § 8 of the Oklahoma Constitution confers the Governor authority to conduct business of the State, it does not specifically state the authority extends to business with Tribes--rather, it explicitly states the Governor's authority to conduct business is limited to business "with other states and with the United States." Okla. Const. art. VI, § 8. Where the constitution is devoid of language "validly and specifically" granting the Governor authority to negotiate and enter into compacts, the Governor's authority must be created by statute or be considered invalid. Ho v. Tulsa Spine & Specialty Hospital, L.L.C., 2021 OK 68, ¶ 20, 507 P.3d 673, 679. "The Governor is without authority to exercise a discretion not validly and specifically granted by the statutory law and not within the power conferred upon the Chief Executive by the Constitution." Ritter v. State, 2022 OK 73, ¶ 15, 520 P.3d 370, 379. ¶22 The Legislature explicitly granted the Governor the authority to negotiate Tobacco and Motor Vehicle Compacts. Title 68 of the Oklahoma statutes authorize the Governor to enter into tobacco products tax compacts with Tribes: The Governor is authorized by this enactment to enter into cigarette and tobacco products tax compacts on behalf of the State of Oklahoma with the federally recognized Indian tribes or nations of this state. The compacts shall set forth the terms of agreement between the sovereign parties regulating sale of cigarettes and tobacco products by the tribes or nations or their licensees in Indian country. 68 O.S. § 346(C).16 Similarly, Title 74 of the Oklahoma statutes grants the Governor authority to negotiate and enter motor vehicle and licensing compacts with the Tribes: The Governor is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest. The Governor may elect to name a designee who shall have authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes as provided for in this section. Except as otherwise provided by this subsection, such agreements shall become effective upon approval by the Joint Committee on State-Tribal Relations. 74 O.S. § 1221(C)(1). ¶23 The Governor's authority to negotiate and enter into the Tobacco Compacts and Motor Vehicle Compacts is born of statute. Our holding today is consistent with our analysis in Griffith v. Choctaw Casino of Pocola, where we recognized that when § 1221 was passed, the Legislature authorized the Governor to negotiate and enter into compacts with Tribes on behalf of the State. Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 12, 230 P.3d 488, 492 ("In 1988, the Oklahoma Legislature authorized the Governor to negotiate and enter into cooperative agreements with federally recognized Indian tribes in furtherance of federal policy and state-tribal relations, subject to approval by a legislative Joint Committee on State-Tribal Relations.") ¶24 In Treat I, we addressed whether two Tribal-gaming compacts negotiated and entered into by the Governor on behalf of the State were binding on the State when the subject of the compacts had not yet been legalized by the Legislature. Treat v. Stitt, 2020 OK 64, ¶ 8, 473 P.3d 43, 45 (Treat I). In holding that the Tribal gaming compacts were invalid under Oklahoma law, we stated that "[t]he legislative branch sets the public policy of the State by enacting law not in conflict with the Constitution. The Governor has a role in setting that policy through his function in the legislative process, but the Governor's primary role is in the faithful execution of the law." Id. ¶ 4, 473 P.3d at 44 (citations omitted). Though we recognized the Governor's authority to negotiate and enter into compacts, "the Governor must negotiate the compacts within the bounds of the laws enacted by the Legislature. . . ." Id. ¶ 5, 473 P.3d at 44. ¶25 We similarly emphasized the Governor's statutory authority to negotiate and enter into State-Tribal compacts in Treat II. Treat v. Stitt, 2021 OK 3, 481 P.3d 240 (Treat II). In Treat II, the Governor invalidly negotiated and entered into new Tribal gaming compacts because the statute granting him the authority to do so required such compacts to be within the bounds of the Model Tribal Gaming Compact or obtained through approval of the Joint Committee on State-Tribal Relations. Id. ¶ 12, 481 P.3d at 244. In holding the compacts were invalid, we stated that "[t]he Executive branch's authority to advocate and negotiate gaming compacts is statutory--not constitutional. And the use of such authority must be in conformity with statute." Id. ¶ 6, 481 P.3d at 242 (citation omitted). The Governor's authority to negotiate and enter into State-Tribal compacts is vested by statute, not the constitution. III. The Passage of S.B. 26x and H.B. 1005x Was Not an Infringement on the Governor's Statutory Authority. ¶26 The Governor contends that, even if the constitution does not grant him the authority to negotiate and enter into State-Tribal compacts, the Legislature has exclusively delegated that power to him in 68 O.S. § 346 and 74 O.S. § 1221. According to the Governor, the passage of S.B. 26x and H.B. 1005x creates a conflict with the express terms of 68 O.S. § 346 and 74 O.S. § 1221. More specifically, the Governor posits that 68 O.S. § 346 and 74 O.S. § 1221 grant him exclusive authority to negotiate and enter into compacts with Tribes. According to the Governor, by allowing the Tribes to extend the terms of existing State-Tribal compacts, the passage of S.B. 26x and H.B.1005x hinders his ability to effectively exercise his delegated authority to negotiate and enter into such compacts, making that authority essentially meaningless. ¶27 Any potential conflict between provisions dealing with the same subject must be read harmoniously. Glasco, ¶ 17, 188 P.3d at 184. When analyzing potential conflicts between statutes, we first determine if there is a repeal by implication of the earlier statute: [T]hat repeals by implication are not favored and all statutory provisions must be given effect if possible; unless the conflict so demonstrated is irreconciliable [sic] the earlier provision will not be repealed by the later enactment. Nothing short of irreconciliable [sic] conflict between statutes accomplishes a repeal by implication. Where such a conflict exists, the later modifies the earlier, even where both sections were enacted into the same official codification. . . . Where statutes conflict in part, the one last passed, which is the later declaration of the Legislature, should prevail, superseding and modifying the former statute only to the extent of such conflict. City of Sand Springs v. Dep't of Public Welfare, 1980 OK 36, ¶ 28, 608 P.2d 1139, 1151 (citations omitted). We find no irreconcilable conflict between S.B. 26x and H.B. 1005x and the plain text of 68 O.S. § 346 and 74 O.S. § 1221. ¶28 Regardless of whether the authority to negotiate State-Tribal compacts was originally intended to be exclusively vested in the Governor by 68 O.S. § 346 and 74 O.S. § 1221, that authority is conditioned upon the will of the Legislature. Consequently, any delegated authority to the Governor is subject to limitation by the Legislature who retains the power to change the underlying law to limit that authority. CompSource Mutual Ins. Co. v. State ex rel. Okla. Tax. Comm'n, 2018 OK 54, ¶ 43, 435 P.3d 90, 105 ("The power exercised by the Governor, by executive order or otherwise, may be limited or granted by statute.") Any authority delegated to the Governor is subject to the will of the Legislature and must "be exercised within the limits of the legislative authorization." Wells v. Childers, 1945 OK 254, ¶ 10, 165 P.2d 358, 361. ¶29 Reading S.B. 26x and H.B. 1005x in harmony with 68 O.S. § 346 and 74 O.S. § 1221, we conclude that these provisions are not mutually exclusive. The later enacted bills do not preclude or prevent the Governor from exercising the authority granted to him by 68 O.S. § 346 and 74 O.S. § 1221. Instead, S.B. 26x and H.B. 1005x offer the Tribes the option to extend their existing compacts with the State--while simultaneously 68 O.S. § 346 and 74 O.S. § 1221 authorize the Governor to offer new terms to the Tribes. ¶30 While we see no irreconcilable conflict between the later enacted bills and 68 O.S. § 346 and 74 O.S. § 1221, even if we were unable to reconcile them harmoniously, our jurisprudence requires that "when there is a conflict between two statutes, one specific...and one general, the statute enacted for the purpose of dealing with the subject matter controls over the general statute." Mutual Injury Trust Fund v. Coburn, 2016 OK 120, ¶ 23, 386 P.3d 628, 636.17 In this case, both 68 O.S. § 346 and 74 O.S. § 1221 grant general authority to the Governor to enter into State-Tribal compacts, whereas S.B. 26x and H.B. 1005x are specifically tailored to offer the Tribes an extension of the existing compacts without repealing the Governor's general authority. 68 O.S. § 346(C) and 74 O.S. § 1221(C)(1). ¶31 Thus, the Governor's general authority is not nullified by the legislative enactment of S.B. 26x and H.B. 1005x, rather, the extension offered the Tribes by S.B. 26x and H.B. 1005x runs concurrently with the Governor's general authority to enter into State-Tribal Compacts. We read S.B. 26x and H.B. 1005x as the Legislature offering the Tribes the option to extend their compacts while at the same time preserving the Governor's general authority to negotiate and enter into new statutory compacts. We hold the passage of S.B. 26x and H.B. 1005x was not an infringement on the Governor's general authority to negotiate and enter into State-Tribal compacts. CONCLUSION ¶32 Original jurisdiction is assumed pursuant to this Court's publici juris doctrine. Our holding is confined to the following issues expressly raised by the parties: (1) whether the concurrent special session convened on May 17, 2023, was unconstitutional; (2) whether the passage of S.B. 26x and H.B. 1005x during the special session are void because they plainly exceeded the limited call of the session; (3) whether S.B. 26x and H.B. 1005x are unconstitutional because they infringe on the Governor's constitutional authority to conduct business; and (4) whether S.B. 26x and H.B. 1005x are void because they violate the plain text of 68 O.S. § 346 and 74 O.S. § 1221. ¶33 We hold that the Legislature had the Constitutional authority to consider S.B. 26x and H.B. 1005x during a concurrent Special Session, and that the Legislation did not exceed the call of the Special Session. Additionally, we hold that the Governor's authority to negotiate State-Tribal compacts is statutory, not constitutional. We further hold that the passage of S.B. 26x and H.B. 1005x was not an infringement on the Governor's statutory authority to negotiate and enter into State-Tribal compacts. ORIGINAL JURISDICTION ASSUMED; DECLARATORY RELIEF DENIED. Rowe, V.C.J., Kauger, Winchester, Edmondson, Combs, Gurich and Darby, JJ., concur. Kane, C.J. and Kuehn, J. (by separate writing), concur in part; dissent in part. FOOTNOTES 1 E.g., Quapaw Tribe/State Tobacco Tax Compact, Quapaw Tribe of Oklahoma-Okla., Sept. 3, 1992, Okla. Sec'y of State No. 27595; Tribal/State Tobacco Tax Compact, Choctaw Nat.-Okla., Jun. 8, 1992, Okla. Sec'y of State No. 27175; Tribal/State Tobacco Tax Compact, Chickasaw Nat.-Okla., Jun. 8, 1992, Okla. Sec'y of State No. 27176; Tribal/State Tobacco Tax Compact, Cherokee Nat.-Okla., Jun. 8, 1992, Okla. Sec'y of State No. 27177; Tribal/State Tobacco Tax Compact, Seminole Nat.-Okla., Jun. 4, 1992, Okla. Sec'y of State No. 27164; Cherokee Nation And State Of Oklahoma Tribal-State Motor Vehicle Licensing Compact, Oct. 1, 2002, Okla. Sec'y of State No. 38401. 2 The term "Tribes" refers to the following Tribal nations which filed Amici Curiae Briefs related to their compacts with the State of Oklahoma: Cherokee Nation, Chickasaw Nation, and Choctaw Nation. 3 Tobacco Tax Compact Between The State of Oklahoma And The Chickasaw Nation, Chickasaw Nat.-Okla., Oct. 31, 2013; Okla. Sec'y of State No. 46549; Tobacco Tax Compact Between The State Of Oklahoma And The Choctaw Nation Of Oklahoma, Choctaw Nat.-Okla., Nov. 4, 2013; Okla. Sec'y of State No. 46555. 4 Motor Vehicle Licensing Compact Between The Cherokee Nation And The State Of Oklahoma For Lands Located Within The Compact Jurisdictional Area Of The Cherokee Nation, Cherokee Nat.-Okla., Aug. 16, 2013, Okla. Sec'y of State No. 46370; Motor Vehicle Licensing Compact Between The Cherokee Nation And The State Of Oklahoma For Lands Located Outside The Compact Jurisdictional Area Of The Cherokee Nation, Cherokee Nat.-Okla., Aug. 16, 2013, Okla. Sec'y of State No. 46371. 5 S. Journal, 59th Legis., 1st Extra. Sess. (May 17, 2023); H.R. Journal, 59th Legis., 1st Extra. Sess. (May 17, 2023). 6 Id. 7 S.B. 26x, 59th Leg., 1st Extra. Sess. (May 17, 2023); 68 O.S. § 346.1. 8 H.B. 1005x, 59th Leg., 1st Extra. Sess. (May 17, 2023); 74 O.S. § 1221.B. 9 H.R. Journal, 59th Leg., 1st Extra. Sess. (July 31, 2023); S. Journal, 59th Leg., 1st Extra. Sess. (July 31, 2023). 10 See, Okla. Const. art. V, § 26; Okla. Const. art. V, § 27A; Okla. Const. art. V, § 34; Okla. Const. art. V, § 35; Okla. Const. art. X, § 23(1). 11 Okla. Const. art. V, § 27A(1) states that "[t]he Legislature may be called into special session by a written call for such purposes as may be specifically set out in the call, signed by two-thirds (2/3) of the members of the Senate and two-thirds (2/3) of the members of the House of Representatives when it is filed with the President Pro Tempore of the Senate and the Speaker of the House of Representatives who shall issue jointly an order for the convening of the special session." 12 Pet'r's Br. in Supp. Of Appl. To Assume Original Juris. And Pet. For Declaratory Relief. 6-7. 13 S. Journal, 59th Legis., 1st Extra. Sess. (May 17, 2023); H.R. Journal, 59th Legis., 1st Extra. Sess. (May 17, 2023). 14 S.B. 26x Summary, 59th Legis., 1st Extra. Sess. (May 23, 2023) states: Fiscal Analysis This measure allows for the extension of Tribal Compacts Tobacco Product Sales Tax. Keeping a compact sharing sales tax on tobacco products allows the state to continue receiving revenues it relies on for the state budget. Without the continuation of these compacts, there would be a decrease in state revenues, affecting the state budget. H.B. 1005x Summary, 59th Legis., 1st Extra. Sess. (May 24, 2023) states: Fiscal Analysis This measure allows for the extension of tribal impacts on Motor Vehicle Licensing and Registration. Continuing these compacts allows for continued revenue sources for the state to help address and maintain roads, bridges, schools, and other infrastructure. Without the continuation of such compacts, there would be a negative affect on the state budget due to loss of revenue. 15 S.B. 26x Summary, 59th Legis., 1st Extra. Sess. (May 23, 2023); H.B. 1005x Summary, 59th Legis., 1st Extra. Sess. (May 24, 2023). 16 We recognize that "[w]here a word or phrase is absent from a statute, we presume that its absence is intentional." In re 2005 Tax Assessment of Real Property Owned by BMI Construction Co., L.L.C., 2008 OK 7, ¶ 13, 187 P.3d 196, 201. In light of this legal doctrine, we note that 68 O.S. § 346(C) authorizes the Governor to 'enter into' State-Tribal compacts whereas 74 O.S. § 1221(C)(1) authorizes the Governor to both 'negotiate and 'enter into' State-Tribal compacts. As this issue was not raised in the briefs by either party, we do not address it. 17 Our jurisprudence adopts the generalia specialibus non derogant canon. A specific prohibition will prevail even if it contradicts a grant of general permission. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012). KUEHN, J., CONCURRING IN PART AND DISSENTING IN PART: ¶1 I concur with Parts I and II of the Majority Opinion. But I disagree with the Majority's approval, in Part III, of legislative meddling in a valid, ongoing delegation of authority. While the Legislature is free to repeal any authority it has granted to the Governor, see Ho v. Tulsa Spine & Specialty Hospital LLC, 2021 OK 68, ¶ 20, 507 P.3d 673, 679, I find no basis for concluding that it may tinker with that authority while it is still in the Governor's hands. ¶2 The "separation of powers" doctrine, apportioning power across the legislature, the judiciary, and the executive, is fundamental to the structure of our federal government, and to Oklahoma's state government as well. Okla.Const. Art. 4, § 1. "Given, then, the importance of separating the several departments, restricting them to their appointed powers, it follows as a logical corollary that each should be kept independent in the sense that the acts of each shall never be controlled by or subjected directly or indirectly to the coercive influences of either of the other departments." State ex rel. York v. Turpen, 1984 OK 26, ¶ 10, 681 P.2d 763, 767. With regard to legislative power, a common concern is whether, and to what extent, the legislature may delegate authority to another branch. But equally important is to what extent the legislature may interfere with authority once it has been delegated. ¶3 In Springer v. Philippine Islands, 277 U.S. 189 (1928), the United States Supreme Court considered Acts of the Philippine Legislature which authorized a committee of three -- two legislators and one executive -- to vote corporate stock owned by the Philippine Government. Because the statutes authorized two legislators to perform the executive function of controlling the management of government-owned corporations, the Court found that they violated the separation-of-powers doctrine. ¶4 In Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court considered an Act designed to eliminate the federal budget deficit. If the deficit exceeded a certain amount, the Act required cuts in federal spending. Necessary calculations were submitted to the Comptroller General, who submitted a report to the President, who then mandated the spending cuts specified by the Comptroller. This scheme gave the Comptroller -- in effect, an agent of Congress -- ultimate authority to determine the budget cuts to be made. Id. at 733. The Court concluded that the act violated the separation-of-powers doctrine and was unconstitutional. "By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect [] retained control over the execution of the Act and has intruded into the executive function." Id. at 734. ¶5 In Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991), the Supreme Court reviewed a federal law authorizing the transfer of control of two airports from the federal government to a local authority, conditioned upon the creation of a review board by the local authority. The board, which was composed of nine congressmen, could veto decisions of the local authority. The Court concluded that conditioning the transfer upon the creation of the review board was an "impermissible encroachment" on the executive branch and violated the separation-of-powers doctrine. Id. at 277. Under this doctrine, the legislature "may not invest itself or its Members with either executive power or judicial power." Id. at 274 (quotation omitted). ¶6 Returning to the present case, Section 346 of Title 68 (governing the sale and taxation of tobacco products on tribal land) authorizes the Governor to "enter into" such compacts on the State's behalf. Similarly, Section 1221 of Title 74 authorizes the Governor to "negotiate and enter into" cooperative agreements between the State and Tribes. I agree with the Majority that "any delegated authority to the Governor is subject to limitation by the Legislature who retains the power to change the underlying law to limit that authority." Majority at ¶ 28. But that isn't what the Legislature did in the 2023 Special Session. The Governor's authority to negotiate these compacts with the Tribes remains. The Majority concedes this. Majority at ¶ 29 ("The later enacted bills do not preclude or prevent the Governor from exercising the authority granted to him by 68 O.S. § 346 and 74 O.S. § 1221"). The separation-of-powers doctrine demands that once the Legislature "makes its choice in enacting legislation, its participation ends." Bowsher, 478 U.S. at 733. In my view, the Legislature may delegate negotiating authority to the Governor, and it may remove that authority. But it may not micro-manage the Governor's execution of the authority delegated to him. ¶7 The micro-management going on here undermines the very purpose of giving the Governor deal-making authority in the first place. The Majority interprets the laws enacted in the Special Session as just buying the parties more time to negotiate. Majority at ¶¶ 28-31. But that goes to the heart of the negotiation process. The Legislature appointed the Governor, not to go on a fact-finding mission or act as a policy messenger, but to make deals with the Tribes. What is to prevent the Legislature from extending the previous compacts again, and again, indefinitely? When one party believes the other has no real authority to make deals, the latter's bargaining power is nullified. Through the later-enacted provisions, the Legislature has effectively nullified the Governor's authority without actually saying so. ¶8 Finally, the Majority characterizes the later-enacted laws as more specific, and thus controlling over what it views as more general legislation delegating negotiating authority to the Governor. Majority at ¶ 30. I cannot agree. The issue is not which of two legitimately enacted statutes should control. Rather, the issue is whether later-enacted statutes are legitimate enactments at all. I believe they aren't, for one precise reason: because they violate the separation-of-powers doctrine and are therefore unconstitutional.

5c8719a1-8d1d-46a0-8fd7-a20e17b32969

INDEPENDENT SCHOOL DISTRICT #52 OF OKLAHOMA COUNTY v. WALTERS

oklahoma

Oklahoma Supreme Court

INDEPENDENT SCHOOL DISTRICT #52 OF OKLAHOMA COUNTY v. WALTERS2024 OK 23Case Number: 121581Decided: 04/02/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. INDEPENDENT SCHOOL DISTRICT #52 OF OKLAHOMA COUNTY (Midwest ) City-Del City); INDEPENDENT SCHOOL DISTRICT #57 OF GARFIELD COUNTY (Enid); INDEPENDENT SCHOOL DISTRICT #71 OF KAY COUNTY (Ponca ) City); and INDEPENDENT SCHOOL DISTRICT #89 OF OKLAHOMA COUNTY (Oklahoma City), Plaintiffs/Appellants, v. RYAN WALTERS, Superintendent of Oklahoma State Department of Education; OKLAHOMA TAX COMMISSION; and TODD RUSS, Oklahoma State Treasurer, Defendants/Appellees, and TULSA PUBLIC SCHOOL DISTRICT, I-1 OF TULSA COUNTY; SAND SPRINGS PUBLIC SCHOOL DISTRICT, I-2 OF TULSA COUNTY; BROKEN ARROW PUBLIC SCHOOL DISTRICT, I-3 OF TULSA COUNTY; BIXBY PUBLIC SCHOOL SYSTEM, I-4 OF TULSA COUNTY; JENKS PUBLIC SCHOOL DISTRICT, I-5 OF TULSA COUNTY; UNION PUBLIC SCHOOL DISTRICT, I-9 OF TULSA COUNTY; and OWASSO PUBLIC SCHOOL DISTRICT, I-11 OF TULSA COUNTY, Oklahoma Public Charter School Association, Intervenor Defendants/Appellees. __________________________________ WESTERN HEIGHTS INDEPENDENT SCHOOL DISTRICT NO. I-41 OF OKLAHOMA COUNTY, Plaintiff/Appellant, v. THE STATE OF OKLAHOMA ex rel. OKLAHOMA STATE DEPARTMENT OF EDUCATION; OKLAHOMA STATE BOARD OF EDUCATION; RYAN WALTERS, State Superintendent of Public Instruction for the State of Oklahoma; OKLAHOMA TAX COMMISSION; and TODD RUSS, Oklahoma State Treasurer, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE SHEILA STINSON, DISTRICT JUDGE ¶0 Several school districts filed an action in the district court, alleging they received insufficient State Aid payments for several years. They sought writs of mandamus to compel the Oklahoma State Board of Education to demand and recoup excessive State Aid payments made to other school districts and pay the underfunded school districts. All parties sought summary judgment. The district court granted the school district intervenors' motion for summary judgment, concluding the State Board of Education did not have a duty to seek repayment of excessive State Aid payments made to other schools until auditors approved by the State Auditor and Inspector performed an audit. The school districts appealed. This Court agreed with the district court, holding that the audit used by the State Board of Education when demanding repayment must be performed by auditors approved by the State Auditor and Inspector. However, the school districts' filings raised the issue of their standing to judicially compel legislative appropriations, and this Court remanded the case to adjudicate standing. On remand, the parties again filed motions for summary judgment. The district court granted the appellees' motions for summary judgment, holding that the school districts failed to establish that they commenced their action before the lapse of any State Aid appropriations from which they sought additional funds. The district court dismissed the case based on the school districts' lack of standing. The school districts appealed, and this Court retained the appeal. We hold that the school districts have no legally cognizable aggrieved interest, and they lack standing. DISTRICT COURT'S JUDGMENT AFFIRMED. Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Plaintiffs/Appellants. Mary H. Tolbert, Steptoe & Johnson, PLLC, Oklahoma City, Oklahoma for Plaintiffs/Appellants. A. Scott McDaniel and Jeremy E. Otis, McDaniel Acord, PLLC, Tulsa, Oklahoma, for Intervenor Defendants/Appellees. Garry M. Gaskins, II, Solicitor General, and Kyle Peppler, Assistant Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for Defendants/Appellees. Winchester, J. ¶1 Appellant School Districts located in Midwest City/Del City, Enid, Ponca City, and Oklahoma City1 (hereinafter Appellant School Districts) appeal the dismissal of their claims seeking mandamus relief for the payment of additional State Aid funds. The district court held that Appellant School Districts lacked standing to bring their claims because they failed to commence this action before the lapse of any State Aid appropriations from which they sought additional funds. We affirm the district court, holding Appellant School Districts have no legally cognizable aggrieved interest and lack standing. FACTS AND PROCEDURAL HISTORY ¶2 Appellant School Districts commenced a legal proceeding in the Oklahoma County District Court, alleging they received deficient State Aid funds between 2004 and 2014,2 because the Oklahoma State Department of Education used an incorrect assessment rate in its calculations for State Aid. Seven school districts located in Tulsa County that were purportedly overpaid during this time intervened in this matter.3 A fifth school district located in Oklahoma County, Western Heights Independent School District, filed a separate action in the district court also seeking mandamus relief and additional State Aid funds, which the district court consolidated with this case. The lengthy and complex procedural history of this case is set forth with particularity in Independent School District No. 52 of Oklahoma County v. Hofmeister, 2020 OK 56, 473 P.3d 475 (hereinafter Hofmeister), and does not warrant repeating here. We concluded in Hofmeister that Appellant School Districts possess no cause of action to obtain legislatively appropriated funds when those funds have lapsed by application of either Article 5, § 55 of the Oklahoma Constitution or other mandatory language, such as in an appropriation bill.4 We remanded the case for the district court to adjudicate whether Appellant School Districts had standing to bring their claims. We directed the district court to do the following: (1) The plaintiffs must present facts and legal authority showing the State Aid funds they seek are based on appropriations of State Aid to their specific school districts which have not lapsed by application of either (a) the thirty-month period of Okla. Const. Art. 5 § 55, or (b) legislative language creating a lapse for the specific appropriation they seek to enforce. (2) General revenue fund appropriations for State Aid lapse thirty months (Okla. Const. Art. 5 § 55) from the date of the appropriation, and other appropriations lapse when the appropriation bill contains lapsing language for the appropriation, and additionally in some circumstances lapsing for a non-general revenue fund appropriation will occur by Okla. Const. Art. 5 § 55. (3) Plaintiffs must show their action was commenced in the District Court within thirty months of any general revenue fund appropriation authorizing the specific State Aid funds they seek. (4) In addition to showing the specific appropriation does not lapse by Okla. Const. Art. 5 § 55, plaintiffs must show the appropriations bill authorizing the appropriation for the funds they seek is a bill which does not contain lapsing language, or if it does contain such language that their District Court action was commenced before the date of lapsing in the appropriations bill. (5) After the plaintiffs show the nature of the lapsed or non-lapsed funds they seek, then the District Court shall make the proper findings of fact and dismiss any claims seeking funds based upon a lapsed appropriation. (6) If plaintiffs fail to show any non-lapsed appropriated funds, then their action shall be dismissed by the District Court because in such circumstance they have no legally cognizable aggrieved interest and they lack standing. (7) If plaintiffs are successful in showing they seek a specific legislative appropriation which has not lapsed after application of either the constitutional thirty-month period or legislative language, then the trial court may proceed to make findings of fact and conclusions of law addressing whether plaintiffs possess a right to compel by mandamus the State Board to fund a claim for specific State Aid funds. (8) If plaintiffs possess a legally cognizable claim to appropriated State Aid funds which have not lapsed, then that claim is subject to the ordinary jurisprudence of mandamus, including the manner, timing, and circumstances of compelling a State entity to pay state funds and whether such is appropriate by mandamus. (9) Mandamus to compel payment of a legally cognizable claim of a school district for payment of State Aid by the State Board must be based upon the State Board refusing to pay that claim made by that school district to the Board. Id. ¶ 102, 473 P.3d at 517. ¶3 On remand, the parties filed competing motions for summary judgment as to whether Appellant School Districts have standing to pursue their claims. Appellant School Districts contended that they have standing because the deadline imposed by Article 5, § 55 of the Oklahoma Constitution is not applicable in this matter. They urged that the funds they sought would be withheld by the State Board of Education from future allocations of State Aid to the overpaid school districts and not from prior lapsed appropriations. Appellant School Districts further argued that even if they sought funds from a prior appropriation, the time to determine whether the appropriation lapsed was the date they gave notice to Appellees of the State Aid allocation error (which was prior to the date the 2014 appropriation lapsed), as opposed to the date that they filed the instant lawsuit in the district court. ¶4 Appellees and Intervenor Appellees argued that Appellant School Districts failed to establish that they commenced their action in the district court before the lapse of appropriations from which they sought additional State Aid funds. ¶5 The district court held that the Hofmeister Court instructed that to prove standing, Appellant School Districts must show that they commenced their action to recover appropriations within thirty months of any general revenue fund appropriation authorizing the specific State Aid funds they sought or that they sought funds from legislative appropriations without any specific lapsing language in the appropriation bills. The district court rejected Appellant School Districts' argument that they were attempting to collect future appropriations, noting that the school districts were ultimately seeking appropriations from previous years. Because they failed to meet their burden, the district court denied Appellant School Districts' motion for summary judgment and granted Appellees' motions for summary judgment, dismissing the case for Appellant School Districts' lack of legal interest and standing. ¶6 Appellant School Districts appealed, and we retained the appeal. We hold that Appellant School Districts failed to establish, as directed in Hofmeister, that the appropriations of State Aid funds they sought have not lapsed by application of either (a) the thirty-month period of Article 5, § 55 of the Oklahoma Constitution or (b) legislative language creating a lapse for the specific appropriation they seek to enforce. We affirm the district court's holding that Appellant School Districts have no legally cognizable aggrieved interest and lack standing. STANDARD OF REVIEW ¶7 The mandamus statute, 12 O.S.2021, § 1451, invokes a special proceeding involving equity not statutorily controlled by the Oklahoma Pleading Code. Gaines v. Maynard, 1991 OK 27, ¶ 11, 808 P.2d 672, 676. In such a proceeding, the Court applies the standard of review based upon the nature of the decision made by the district court. Here, the parties sought summary judgment as to whether Appellant School Districts have standing to pursue their claims. Summary judgment resolves issues of law, and we review a district court's grant of summary judgment de novo. U.S. Bank, N.A. ex rel. Credit Suisse First Boston Heat 2005--4 v. Alexander, 2012 OK 43, ¶ 13, 280 P.3d 936, 939. Using the de novo standard, we subject the record to a new and independent examination without regard to the district court's reasoning or result. Gladstone v. Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, ¶ 5, 66 P.3d 442, 446. DISCUSSION ¶8 Standing is jurisdictional. Hofmeister, 2020 OK 56, ¶ 15, 473 P.3d at 484. Appellant School Districts must show a legally cognizable aggrieved interest and standing to compel the State Board of Education to fund a claim for specific State Aid funds. School districts generally possess a legal interest to compel the payment of State Aid funds. However, school districts lack standing to bring claims seeking funds based on a lapsed appropriation. Id. ¶ 100, 473 P.3d at 516. The issue before this Court is whether the State Aid funds Appellant School Districts sought are appropriations of State Aid to their specific school districts that have lapsed. A. The State Aid funds Appellant School Districts sought are appropriations of State Aid to their specific school districts that have lapsed. ¶9 Appellant School Districts sought to recover funds from the State of Oklahoma that were previously appropriated between 2004 and 2014 by the Legislature to the State Board of Education for the payment of State Aid. The Oklahoma Constitution sets parameters for funds appropriated from the general revenue fund. Specifically, the Oklahoma Constitution prevents state officials from making a payment of funds on a state general revenue appropriation older than two and one-half years (thirty months). Id. ¶ 77, 473 P.3d at 507. Article 5, Section 55 states: No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum. Okla. Const. Art. 5, § 55 (emphasis added). ¶10 In Hofmeister, we determined that without any specific legislative language creating a lapse for an appropriation a school district seeks to enforce, State Aid funds are presumed general revenue funds that lapse within thirty months of their date of appropriation: There can be no doubt that [Article 5, § 55 of the Oklahoma Constitution] and its thirty-month period for an appropriation lapse applies to annual fiscal year State Aid appropriated amounts derived from the State's general revenue fund. Hofmeister, 2020 OK 56, ¶ 92, 473 P.3d at 514. On remand, we directed Appellant School Districts to overcome the presumption that the funds are general revenue funds. Appellant School Districts did not meet this burden nor establish the appropriations they sought were authorized by bills that did not contain lapsing language. Id. ¶ 102, 473 P.3d at 517. ¶11 Thus, we are to presume that the funds Appellant School Districts sought are general revenue funds that lapsed within thirty months of their appropriation. The last State Aid appropriation that Appellant School Districts claimed was for the fiscal year 2014, which was encumbered by June 30, 2016. Appellant School Districts filed their action on September 14, 2016, failing to commence their action before the thirty-month deadline lapsed. The State Aid funds Appellant School Districts sought are appropriations of State Aid to their specific school districts that have lapsed. B. The funds sought by Appellant School Districts were past appropriations of State Aid and not future appropriations or ad valorem revenue. ¶12 Appellant School Districts, instead, advance several arguments to show that the Hofmeister holding that the funds at issue were past appropriations of State Aid was erroneous. Appellant School Districts first argue that they seek to recover funds from future appropriations, not lapsed appropriations. Appellant School Districts rely on 70 O.S.2021, § 18-118(C), which sets forth the mechanism to recoup improperly allocated State Aid funds. Specifically, section 18-118(C) states: C. If audits disclose that state monies have been illegally apportioned to, or illegally disbursed or expended by, a school district or any of its officers or employees, the State Board of Education shall make demand that the monies be returned to the State Treasurer by such school district. If the monies are not returned, the State Board of Education shall withhold the unreturned amount from subsequent allocations of state funds otherwise due the district. The State Board of Education shall cause suit to be instituted to recover for the state any monies illegally disbursed or expended, if not otherwise recovered as provided herein. 70 O.S.2021, § 18-118(C) (emphasis added). ¶13 Section 18-118 sets forth that the State Board of Education will recoup improperly allocated State Aid funds from subsequent allocations of state funds. However, there is a distinction between Appellant School Districts' standing in this matter and the State Board of Education's mechanism for recoupment. A statutory duty of the State Board of Education to recoup State Aid outlined in 70 O.S.2021, § 18-118 cannot translate into a corresponding right possessed by school districts to obtain those recouped funds. Appellant School Districts must first establish standing to compel the State Board of Education to fund a non-lapsed appropriation. ¶14 Further, we previously noted in Hofmeister that State Aid funds retain their identity as appropriated state funds even when an incorrect amount is transferred to a school district. Hofmeister, 2020 OK 56, ¶ 50, 473 P.3d at 496. Regardless of what method is used for recouping improperly allocated State Aid funds, Appellant School Districts claimed funds that have retained their character as state funds appropriated in the years 2004 through 2014. ¶15 Appellant School Districts also argue that the Oklahoma State Department of Education effectively took ad valorem revenues from them and gave those revenues to other school districts, which was an unconstitutional taking. However, Appellant School Districts have again provided no evidence that State Aid funding came from a local county budget as opposed to the general revenue fund of the State Treasury. Further, this action stems from miscalculations in the State Aid formula. State Aid is supplemental to local revenues, and the local revenues remain with the numerous school districts and are not considered legislatively appropriated funds. We uphold the Hofmeister conclusion that the funds at issue sought by Appellant School Districts were past appropriations of State Aid, and we conclude today that those appropriations of State Aid to their specific school districts have lapsed. C. The date to determine whether the appropriations sought have lapsed is the date Appellant School Districts commenced their action in district court. ¶16 Appellant School Districts then contend that if this Court concludes that the funds they sought are from past appropriations, their written demand dated July 15, 2015, giving Appellees notice of the alleged State Aid allocation error should be the date to determine whether Appellant School Districts met the thirty-month deadline. They rely on the tolling exception found in Fortinberry Co. v. Blundell, 1952 OK 80, 242 P.2d 427, to support their argument. The Court applies the Fortinberry tolling exception only when a state official wrongfully refuses to perform an act necessary to secure payment. Id. ¶ 30, 242 P.2d at 434. In Hofmeister, we distinguished the circumstances in Fortinberry from the claimed miscalculations at issue here. We stated: This language simply cannot be read as equating the act of an incorrect school district apportionment with an act of [a] State officer which "wrongfully refuses to perform an act necessary to secure payment." Such a reading would prevent any general revenue fund appropriation from lapsing after thirty months when one government entity seeks judicial correction of payments the Legislature has specified are to be transferred from one government entity to another government entity. Hofmeister, 2020 OK 56, ¶ 84, 473 P.3d at 511. The tolling exception in Fortinberry does not apply to this case. ¶17 Similarly, in State ex rel. Board of Education of Independent School District No. 1 of Grady County v. State Board of Education, 1955 OK 229, 287 P.2d 704, we noted the applicability of Article 5, § 55 of the Oklahoma Constitution to State Aid funds and observed the availability of funds to pay the appropriation to the school districts on the date the school districts commenced their action in the district court. ¶18 We follow our precedent, holding that the date to determine whether the appropriations sought have lapsed is the date Appellant School Districts commenced their action in district court. As discussed above, Appellant School Districts failed to commence their action before the thirty-month deadline, and they lack a legally aggrieved interest and standing. CONCLUSION ¶19 This Court directed Appellant School Districts to present facts and legal authority to demonstrate the State Aid funds they sought are based on appropriations of State Aid that have not lapsed. They failed to meet this burden. Appellant School Districts commenced their action in the district court after the thirty-month deadline as outlined in Article 5, § 55 of the Oklahoma Constitution. Appellant School Districts possess no cause of action to obtain legislatively appropriated funds because those funds lapsed by application of Article 5, § 55. The district court's judgment is affirmed. DISTRICT COURT'S JUDGMENT AFFIRMED. CONCUR: KANE, C.J., ROWE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH, AND KUEHN, J.J. RECUSED: DARBY, J. FOOTNOTES 1 The specific school districts that brought the action are Independent School District No. 52 of Oklahoma County (Midwest City-Del City), Independent School District No. 57 of Garfield County (Enid), Independent School District No. 71 of Kay County (Ponca City), and Independent School District No. 89 of Oklahoma County (Oklahoma City). 2 Appellant School Districts originally alleged they received deficient funds from 1992 to 2014. All parties agreed that the Oklahoma State Department of Education does not have sufficient records to recalculate the correct allocations of State Aid from 1992 to 2003, and Appellant School Districts amended the date range of their claims to 2004 through 2014. 3 The specific school districts that intervened are Tulsa Public School District I-1 of Tulsa County, Sand Springs Public School District I-2 of Tulsa County, Broken Arrow Public School District I-3 of Tulsa County, Bixby Public School System I-4 of Tulsa County, Jenks Public School District I-5 of Tulsa County, Union Public School District I-9 of Tulsa County, and Owasso Public School District I-11 of Tulsa County. 4 Appellant School Districts filed a petition for rehearing with this Court, urging the same arguments addressed in this opinion. We denied the petition, noting the Appellant School Districts would have the opportunity to litigate the issues presented in their petition when the district court adjudicated standing.

cc6716b2-dda2-4a16-ae9c-84b19239d12b

Anaya-Smith v. Federated Mutual Insurance Co.

oklahoma

Oklahoma Supreme Court

ANAYA-SMITH v. FEDERATED MUTUAL INSURANCE CO.2024 OK 34Case Number: 120403Decided: 05/14/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. NANCY ANAYA-SMITH, Next of kin of Michael Brian Smith, deceased, Plaintiff/Appellant,v. FEDERATED MUTUAL INSURANCE COMPANY, Defendant/Appellee. CERTIFIED QUESTIONS FROM THE UNITED STATESCOURT OF APPEALS FOR THE TENTH CIRCUIT ¶0 The United States Court of Appeals for the Tenth Circuit certified three questions of state law to this Court pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611. CERTIFIED QUESTIONS ANSWERED IN PART. Rex Travis, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Bart J. Robey, Chubbuck, Duncan & Robey, Oklahoma City, Oklahoma, and Thomas H. Crouch, Meagher & Greer, Scottsdale, Arizona, for Defendant/Appellee. PER CURIAM: ¶1 The United States Court of Appeals for the Tenth Circuit certified to this Court three questions of law: 1. Where Mr. Smith was injured and killed as a passenger in an employer-owned vehicle that had $7,000,000 of liability insurance and has not shown the claim would exceed $7,000,000, but where Mr. Smith cannot recover under the policy because the worker's compensation exclusive remedy provision of 85A O.S. § 5, bars suit against the employer, does that vehicle qualify as an uninsured motor vehicle within the meaning of 36 O.S. § 3636(C)? 2. Does 36 O.S. § 3636 permit FADCO, a corporate named insured, to purchase uninsured motorist coverage for its directors, officers, partners, owners, and their family members who qualify as insureds, but to reject uninsured motorist coverage for other persons who qualify as insureds? 3. If FADCO's insurance policy with Federated violates 36 O.S. § 3636, does the legislative intent or purpose of § 3636 impute the $1,000,000 uninsured motorist coverage policy limit FADCO purchased for its directors, officers, partners, owners, and their family members who qualify as insureds or [does] the $25,000 per person/$50,000 per accident minimum uninsured motorist coverage policy limit in § 3636 [apply] to the other persons who qualify as insureds? ¶2 We answer the first question in the affirmative. Where Decedent was injured and killed as a passenger in an employer-owned vehicle with $7,000,000 of liability insurance and no proof was submitted to show the claim would exceed $7,000,000, but where Decedent cannot recover under the policy because the workers' compensation exclusive remedy provision of 85A O.S.Supp.2019, § 5 bars suit against the employer, the vehicle qualifies as an uninsured motor vehicle within the meaning of 36 O.S.Supp.2014, § 3636(C). ¶3 We answer the second question in the negative and conclude that the plain language of 36 O.S.Supp.2014, § 3636(G) requires a named insured to either elect or reject uninsured/underinsured motorist coverage for all insureds under the policy, treating every insured in the same manner. ¶4 Finally, because the record is undeveloped and the parties did not submit legal arguments pertaining to the third certified question, we decline to answer it for the first time. I. CERTIFIED FACTS AND PROCEDURAL HISTORY ¶5 The federal court's certification order sets out the facts of this case. When answering a certified question, this Court will not presume facts outside those presented in the certification order. See Hamilton v. Northfield Ins. Co., 2020 OK 28, ¶ 4, 473 P.3d 22, 25. Our examination is confined to resolving legal issues. Id. ¶6 On March 24, 2020, Michael Brian Smith ("Smith") was killed in a single-car accident that occurred while he was a passenger in a company vehicle owned by Fixtures & Drywall Company of Oklahoma ("FADCO"). At the time of the accident, the FADCO vehicle was being driven by Decedent's coworker, Duane Clark. Plaintiff/Appellant Nancy Anaya-Smith ("Anaya-Smith"), as next of kin of Smith (the "deceased"), contends the co-employee's negligence caused the fatal accident. ¶7 At the time of the accident, FADCO maintained an insurance policy with Federated Mutual Insurance Company ("Federated"). The insurance policy identified FADCO as the named insured and extended liability coverage to "all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies caused by an 'accident' and resulting from the ownership maintenance, or use of a covered auto."1 The policy provided up to $1,000,000 of liability coverage per accident. FADCO also obtained an umbrella policy (Federated Policy No. 9840993), furnishing an additional $6,000,000 of liability coverage per accident -- for a total of $7,000,000 in liability coverage. These liability limits covered an "insured," which includes FADCO and "anyone else while using with [FADCO's] permission a covered 'auto' [FADCO] own[s], hire[s], or borrow[s]."2 The policies exclude "[a]ny obligation for which the 'insured's' insurer may be held liable under any workers' compensation disability benefits."3 Both parties agree that the vehicle involved in the fatal accident was a covered auto and the driver was an insured for liability purposes. ¶8 In addition to liability coverage, Federated offered FADCO the option of purchasing uninsured motorist (UM) insurance coverage by using an election form identical to the one required by 36 O.S.Supp.2014, § 3636(H). This form was identified as F80-104 PT.2 (OK-CA) (04-05) (Form 1). On February 28, 2018, a FADCO representative executed Form 1, rejecting UM coverage for all employees. Federated also provided FADCO with a separate document pertaining to the rejection/acceptance of UM benefits. This form deviated extensively from the format outlined in § 3636(H) and was identified as F80-104 PT.1 (OK-C.A.) (04-05) (Form 2). Form 2, which appears to be a substantially modified version of the statutorily required form, included two columns--one column representing UM coverage for directors, officer, partners or owners, and their family members, and a second column for any other person who qualified as an insured. FADCO elected to purchase UM coverage up to $1,000,000 for the directors, officers, partners, or owners of and their family members who qualify as insureds; however, FADCO rejected UM coverage for all other insureds:4 Based on the selections made in Form 2, an endorsement providing UM coverage for FADCO directors, officers, partners, or owners of and their family members who qualify as insureds was added to Policy No. 9840992. ¶9 Because Smith was in the course and scope of his employment and traveling in an employer-owned vehicle at the time of the accident, the exclusive remedy provision of the Oklahoma Workers' Compensation Act applied. Thus, Anaya-Smith was prohibited from suing FADCO or recovering damages under FADCO's commercial and umbrella policies. See 85A O.S.Supp.2019, § 5. Instead, Anaya-Smith sought recovery of UM benefits under FADCO's commercial policy. Federated denied the UM claim because Smith was not a director, officer, partner, owner or qualifying member of FADCO at the time of the accident. ¶10 After her claim was disallowed, Anaya-Smith filed suit against Federated in the United States District Court for the Western District of Oklahoma. In her Complaint, Anaya-Smith alleged that Federated denied her UM claim in bad faith and that its UM coverage scheme contravened Oklahoma law and public policy. Federated denied these claims and brought a counterclaim for declaratory judgment. Federated asked the federal district court to determine that FADCO's insurance policy does not provide UM coverage to Smith because (1) the vehicle was not an uninsured vehicle at the time of the accident because the driver qualified as an insured for liability coverage and (2) FADCO's rejection of UM coverage for some insureds and not for others was valid and did not violate 36 O.S.Supp.2014, § 3636. In the alternative, Federated claimed that if 36 O.S.Supp.2014, § 3636 requires a named insured to purchase/reject UM coverage uniformly for all insureds under a policy, UM coverage should be imputed at the minimum of $25,000 per person and $50,000 per occurrence in the statute, rather than the $1,000,000 amount under Federated Policy No. 9840992. ¶11 The parties each filed competing cross-motions for summary adjudication. Anaya-Smith sought partial summary judgment on the coverage issue. Federated also moved for summary judgment on the coverage issue, the bad faith claim, and its request for declaratory judgment. The district court granted summary judgment in favor of Federated and denied Anaya-Smith's motion. Specifically, the district court concluded: (1) the subject automobile was an uninsured vehicle at the time of the accident because Clark is immune from tort liability and (2) FADCO's policy providing UM coverage for some individuals who qualify as insureds but rejecting UM coverage for other insureds does not violate 36 O.S.Supp.2014, § 3636. Anaya-Smith appealed from the summary judgment order.5 The Tenth Circuit certified the above-referenced questions to this Court. II. REQUIREMENTS FOR ANSWERING CERTIFIED QUESTIONS ¶12 This Court has the discretionary power to answer certified questions of law if presented in accordance with the provisions of the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611. When assessing whether we should answer a federal certified question of law, we address both factors mentioned in § 1602: (1) would the answer be dispositive of an issue in pending litigation in the certifying court; and (2) is there established and controlling law on the subject matter? See Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶ 14, 392 P.3d 262, 266. Answers to the first two certified questions would be determinative of issues in the underlying suit and present issues of first impression for which there is no controlling Oklahoma precedent. However, because the issue(s) relating to the amount which would be payable under the policy was not decided in the district court and was not briefed by the parties in the Tenth Circuit appeal, we decline to address the third question. III. FIRST CERTIFIED QUESTION Where Mr. Smith was injured and killed as a passenger in an employer-owned vehicle that had $7,000,000 of liability insurance and has not shown the claim would exceed $7,000,000, but where Mr. Smith cannot recover under the policy because the workers' compensation exclusive remedy provision of 85A O.S. § 5 bars suit against the employer, does that vehicle qualify as an uninsured motor vehicle within the meaning of 36 O.S. § 3636(C)? ¶13 The federal court's first certified question asks us to decide whether the FADCO-owned vehicle involved in this accident was an "uninsured motor vehicle" within the meaning of 36 O.S.Supp.2014, § 3636(C). It is undisputed that the driver and the Decedent were in the course and scope of their employment when the single-car accident occurred. Thus, Decedent may not recover against his employer under the Federated liability policy because of the workers' compensation exclusive remedy provision of 85A O.S.Supp.2019, § 5. ¶14 Federated maintains the automobile involved in the accident is not an uninsured/underinsured motor vehicle because Federated provided up to $7,000,000 of liability coverage and Anaya-Smith has not shown the claim would exceed the liability coverage provided. However, Anaya-Smith's argument is not premised on the amount of liability coverage provided by Federated--instead she maintains, the Oklahoma Workers' Compensation Act (OWCA), 85A O.S.Supp.2019, § 5, precludes her from recovering any of the insurance proceeds against the employer or the driver.6 Therefore, because there is no ability to collect against the liability insurance proceeds, Anaya-Smith argues the subject vehicle falls within the definition of "uninsured motor vehicle." ¶15 Because uninsured motorist coverage is an important part of automobile insurance coverage, an entire section of the Oklahoma Insurance Code is dedicated to defining the coverage and providing protections for policyholders. For coverage purposes 36 O.S.Supp.2014, § 3636(C) defines the phrase uninsured motor vehicle as follows: [T]he term "uninsured motor vehicle" shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. For the purposes of this coverage the term "uninsured motor vehicle" shall also include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim, regardless of the amount of coverage of either of the parties in relation to each other. Because FADCO's liability policy is not accessible as a source for recovery, it logically follows that limits are less than the amount of Anaya-Smith's claim. ¶16 We have previously addressed the interplay between the exclusive remedy provision of OWCA and uninsured motorist (UM) coverage. First, in Barfield v. Barfield, 1987 OK 72, 742 P.2d 1107, we addressed a similar scenario to the case currently before us. Therein, two co-workers were involved in a fatal single motor-vehicle accident while in the course and scope of their employment. Id. ¶ 1, at 1109. The surviving spouses of both co-workers sought and received workers' compensation benefits from their employer as provided by the Oklahoma Workers' Compensation Act. Id. ¶ 3, at 1109. The widow of the passenger-employee in the accident filed a wrongful death action in the district court against the estate of the driver-employee and Kansas City Fire & Marine Insurance Company. Id. ¶ 4, at 1109.The passenger-employee was insured by a policy with Kansas City Fire & Marine which provided UM coverage. Id. The insurance company in Barfield argued the widow was not legally entitled to recover UM benefits because she had already recovered her exclusive remedy under the Workers' Compensation Act. Id. ¶ 11, at 1110-11. Although, we affirmed dismissal of a direct cause of action against the driver-employee for negligence, we clearly acknowledged the right of the employee-passenger's surviving spouse to recover UM benefits under the subject policy: [E]mployer-employee tort immunity under the Workers' Compensation Act does not preclude recovery under one's own contract of insurance with an insurance carrier unrelated to the employer-employee relationship. The Oklahoma State Legislature has clearly manifested an intent that a worker who takes steps to assure his financial security shall not be penalized. . . .7 Protection under an uninsured motorist policy is a contractual right resting in the insured and thus may be coexistent with the protection under the Workers' Compensation Act. Id. ¶¶ 12-13, at 1111-12. Thus, we held workers' compensation benefits and UM benefits are not mutually exclusive and the recovery of UM does not require an insured to proceed in tort against the uninsured/underinsured as a condition to recovery under the policy. Id. ¶ 13, at 1113. ¶17 Subsequently, in Torres v. Kansas City Fire & Marine Insurance Co., 1993 OK 32, 849 P.2d 407, we considered another situation remarkably similar to the present case, and concluded that an employee was legally entitled to recover UM benefits under his employer's policy despite receiving workers' compensation benefits.8 Id. ¶ 1, at 408. In Torres, two coworkers were involved in a single-car accident, resulting in the death of the employee-passenger. Id. ¶ 2, 849 P.2d at 409. The vehicle was owned by the employer and covered by a comprehensive business insurance policy which included a UM endorsement. Id. ¶¶ 2-3, 849 P.2d at 409. The insurer conceded that the deceased employee-passenger was an insured because he was an occupant of the employer's vehicle and met the definition of insured contained in the policy. Id. Additionally, both parties stipulated that the coworkers were in the course and scope of their employment and that each recovered workers' compensation benefits.9 Id. The trial court determined, as a matter of law, that UM coverage was available. Id. ¶ 4, at 409. Thereafter, the parties proceeded to trial on the issue of employee-passenger's damages attributable to his coworker's negligence, and the jury returned a verdict in the amount of $350,000. Id. ¶18 On appeal, the insurance company argued the UM endorsement was inapplicable because the employee-passenger was not legally entitled to recover damages from the employee-driver because of statutory immunity under Oklahoma's workers' compensation laws. Id. ¶ 5, at 409. We held that the UM endorsement provided coverage despite the exclusivity provision of the Oklahoma Workers' Compensation Act, explaining: "the determining factor is . . . the intention of the parties to the contract . . . that UM coverage would be available once it was determined the party seeking coverage was an insured under the policy, that the uninsured tortfeasor causing damages was at fault and the extent of those damages was shown." Id. ¶ 13, 849 P.2d at 412. ¶19 The federal district judge relied on both Barfield and Torres to conclude Oklahoma precedent allows pursuit of UM proceeds despite receiving workers' compensation benefits. Federated, on the other hand, argues that the Barfield and Torres cases should not apply because they do not address the status of the vehicle. More specifically, it argues that Anaya-Smith has not established that the employer-owned vehicle was an "uninsured motor vehicle" as required for UM coverage to be applicable. To further support this contention, Federated alleges that the Barfield and Torres decisions should not apply because those cases likely involved standard automobile policies that typically include "fellow employee" exclusions which render a vehicle uninsured. ¶20 We are not persuaded by these arguments and will not read language into a policy of insurance that does not exist by mere suggestion or speculation of counsel. Further, we believe the federal district court correctly applied both the Barfield and Torres cases in its ruling on the status of the accident vehicle--it is an uninsured vehicle for purposes of determining UM benefits pursuant to 36 O.S., § 3636. In reaching its decision that the vehicle in this case was uninsured, the district court also referred to the case of Stand v. Hudson Insurance Company, 2017 WL 11474147 (N.D. Okla. 2017). In an order addressing both cases, the Stand court opined: Barfield and Torres do not specifically discuss whether an immune tortfeasor is uninsured under § 3636, but in both cases the Oklahoma Supreme Court found that an insured could recover UIM benefits when the insured could not directly collect under an automobile liability insurance policy after receiving workers' compensation benefits. Neither Torres nor Barfield makes any sense unless it is implied that an immune tortfeasor is treated as an uninsured motorist as a matter of Oklahoma law . . . . The Oklahoma Supreme Court has not expressly stated that a tortfeasor immune from suit due to the exclusive remedy of workers' compensation is uninsured, but the Court would be ignoring the clear implication of Barfield and Torres if it were to find to the contrary. Id. at *4. ¶21 We agree and now expressly hold that a tortfeasor, who is immune from suit due to the exclusive remedy of workers' compensation, may be an uninsured motorist as a matter of Oklahoma law. The vehicle involved in the subject accident qualifies as an uninsured motor vehicle pursuant to 36 O.S.Supp.2014, § 3636(C). We therefore answer the first certified question with a "yes." In this case the Decedent was killed as a passenger in an employer-owned vehicle covered by $7,000,000 of liability insurance. Although no proof was submitted to show the claim would exceed $7,000,000, it was unnecessary because the Decedent could not recover under the policy as a result of the workers' compensation exclusive remedy provision in 85A O.S.Supp.2019, § 5. Accordingly, the FADCO vehicle is an uninsured motor vehicle within the meaning of 36 O.S.Supp.2014, § 3636(C), and the Decedent was an insured under the Federated UM policy. IV. SECOND CERTIFIED QUESTION Does 36 O.S. § 3636 permit FADCO, a corporate named insured, to purchase uninsured motorist coverage for its directors, officers, partners, owners, and their family members who qualify as insureds, but to reject uninsured motorist coverage for other persons who qualify as insureds? ¶22 The second question requires us to determine whether Oklahoma's statutory UM scheme prohibits a corporate insured from electing, under a general automotive liability policy, to purchase UM coverage for certain executives and/or persons with an ownership interest in the company, while rejecting such coverage for the remaining company employees. We hold that once FADCO opted to purchase UM coverage under its Federated liability policy, all insureds must be treated in a uniform manner; 36 O.S.Supp.2014, § 3636 does not permit the election of UM coverage for some insureds while excluding others. ¶23 Anaya-Smith argues that a policy such as the one purchased by FADCO, which provides UM coverage for one class of insureds, but rejects it for others, is contrary to Oklahoma law and public policy. Title 36 O.S.Supp.2014, § 3636(G) reads: A named insured or applicant shall have the right to reject uninsured motorist coverage in writing. The form signed by the insured or applicant which initially rejects coverage or selects lower limits shall remain valid for the life of the policy and the completion of a new selection form shall not be required when a renewal, reinstatement, substitute, replacement, or amended policy is issued to the same-named insured by the same insurer or any of its affiliates. Any changes to an existing policy, regardless of whether these changes create new coverage, do not create a new policy and do not require the completion of a new form. After selection of limits, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or applicant for insurance, the insurer shall not be required to notify any insured in any renewal, reinstatement, substitute, amended or replacement policy as to the availability of such uninsured motorist coverage or such optional limits. Such selection, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or an applicant shall be valid for all insureds under the policy and shall continue until a named insured requests in writing that the uninsured motorist coverage be added to an existing or future policy of insurance. (emphasis added). Focusing in on the "shall be valid for all insureds" language in § 3636(G), Anaya-Smith argues the named insured must make the same UM election for all insureds. Thus, the named insured only has two choices--purchase the same coverage for all persons who may qualify as insureds or reject coverage for everyone. ¶24 Federated maintains that FADCO validly rejected UM coverage by completing the written form required by 36 O.S.Supp.2014, § 3636(H), but then opted, under that same policy, to purchase UM coverage for FADCO's directors, officers, partners, owners and qualified family members. Thus, Federated argues Smith does not qualify for UM coverage because he does not fall into any of those categories. Additionally, Federated suggests the proper reading of "[s]uch selection, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or an applicant shall be valid for all insureds" in subsection G is to conclude whatever election is made by the named insured is "binding" on all other insureds. Further, Federated maintains there is nothing in Section 3636 which mandates all-or-nothing UM coverage. These arguments are not persuasive. ¶25 When construing statutes, it is this Court's obligation to ascertain legislative intent. Russell v. Chase Inv. Servs. Corp., 2009 OK 22, ¶ 20, 212 P.3d 1178, 1185. Words in a statute are to be construed according to their plain and ordinary meaning unless it is clear the legislature intended a different meaning. Fanning v. Brown, 2004 OK 7, ¶ 10, 85 P.3d 841, 845-46. Rules of construction are not utilized if the language in a statute is unambiguous. Lang v. Erlanger Tublar Corp., 2009 OK 17, ¶ 8, 206 P.3d 589, 591. Section 3636 does not contain an ambiguity; it is straightforward and susceptible to only one reasonable interpretation. ¶26 We agree with Anaya-Smith's reading of § 3636. The language in subsection G clearly requires a named insured to either select, reject or exercise an option not to purchase UM coverage under a policy; yet, whatever choice is made must apply to all insureds equally under the policy. There is simply no other reasonable way of reading the plain text of § 3636(G); the relevant statutory language simply does not permit a named insured to pick and choose which persons are eligible for UM benefits under a policy. First, subsection G uses the term "valid" and not "binding."10 The term valid is defined as "having legal efficacy or force."11 Thus, whatever action taken by the named insured is legally effective for all insureds under the same policy. Second, the subsection uses the predicate "such" (defined as "of a kind or character to be indicated"12) before selection, rejection, or exercise the option not to purchase, indicating a specific and singular action. Id. Had the statute been written in the plural (ie., "selections, rejections) Federated would certainly have a better argument; however, since the statute is written in the singular, it is apparent the legislature intended one action cover all insureds. Federated contends that the choice for the insured to "exercise the option not to purchase" in the statute would be surplusage if it simply meant the same thing as "rejection." While the phrase "exercise the option not to purchase" does appear redundant (or perhaps even superfluous), the statute in its entirety gives a named insured only two real options elect or reject UM benefits. This is made even more clear when the election form in § 3636(H) is examined.13 Federated required FADCO to execute two separate forms pertaining to UM coverage--one which mirrored the statutory language in § 3636(H) (Form 1) and a second one that did not (Form 2). Additionally, there are no options in § 3636(G) other than selecting UM in various amounts or rejecting UM coverage. ¶27 Whether an insured may limit UM coverage to certain classes of insureds under § 3636 presents a question of first impression in this state. However, several other states have had the opportunity to consider UM policies providing different levels of coverage to separate classes of insureds to determine if those policies violate public policy. We look to those cases for context, bearing in mind the particular language in each state's statutes. For example, in Varro v. Federated Mut. Ins. Co., 854 So. 2d 726 (Fla. Ct. App. 2003) a Florida intermediate court analyzed a UM insurance policy issued by Federated, which contained contrasting UM coverages similar to the one in the case before us. Specifically, the Federated policy included a special endorsement affording UM coverage to any director, officer, partner, or owner of the named insurer, and his or her family member who qualify as an insured. Id. at 728. However, this endorsement excluded coverage for "any other person qualifying as an insured." Id. The relevant Florida statute provided that an insured could reject UM coverage "on behalf of all insureds under the policy," but the statute did not permit rejection of UM coverage on behalf of only some insureds under the policy. Id. at 729.14 The language in the Florida statute is similar to the language in § 3636(G). In fact, the only difference in the two is that the Florida statute applies to a rejection affecting all insureds while Oklahoma's UM statute covers any "selection, rejection, or exercise of the option not to purchase uninsured motorist coverage," and again covers all insureds. 36 O.S.Supp.2014, § 3636(G) (emphasis added). ¶28 Likewise, in Balagtas v. Bishop, 910 N.E.2d 789, 795 (Ind. Ct. App. 2009), an Indiana appellate court determined that its UM statute prohibited rejection of UM/UIM coverage on behalf of some but not all insureds. As in Varro and the Oklahoma statute, the Indiana statute contained distinct language which required any rejection of UM to cover all insureds. The Indiana statute mandated that any "rejection of coverage under this subsection by a named insured is a rejection on behalf of all other named insureds, all other insureds, and all other persons entitled to coverage under the policy." IND. CODE ANN. § 27-7-5-2(b) (West 1999). Although this clause is a little different than § 3636(G), its objectives and mandatory outcomes are the same--a named insured must treat all of its insureds under a UM/UIM policy in a consistent manner. The Balatgas court concluded that a UM policy covered an employee injured in a motor vehicle accident, despite language limiting benefits to directors, officers, partners or owners of the named insured and family members who qualify as insureds. Id. at 796. See also American Family Mut. Ins. Co. v. Federated Mut. Ins. Co., 775 N.E.2d 1198, 1206 (Ind. Ct. App. 2002) ("Federated's attempt to exclude the Browns from uninsured motorist coverage because they are not directors, officers, partners, and owners of the named insured is void under Indiana law and cannot be condoned by this court"). ¶29 Federated also relies on cases from outside jurisdictions in support of its argument that the policy exclusion in this case was enforceable. First, Federated points to a decision from the Delaware Supreme Court in Stoms v. Federated Servs. Ins. Co., 125 A.3d 1102 (Del. 2015). While driving a company car, employee David Stoms was killed by an uninsured motorist. Id. at 1104. Diamond Motor had previously opted to provide UM coverage for directors, officers, partners, and owners of the corporation, but rejected UM coverage for all other persons who would qualify as an insured. Id. at 1103-05. Federated denied coverage and Mr. Stoms' wife initiated suit, claiming the exclusion in the insurance policy was invalid because it applied "different levels of uninsured motorists coverage to different drivers." Id. at 1106. Rejecting this argument, the court concluded the coverage scheme did not violate statutory requirements. However, the Delaware UM statute did not contain any language similar to § 3636(G).15 In fact none of the cases cited by Federated in support of its argument addressing the second certified question are persuasive because the relevant state statutes do not include provisions requiring uniform treatment of all insureds like the clause contained in § 3636(G).16 ¶30 Although parties to an insurance contract are free to negotiate terms as they see fit, an insurance contract must still comply with Oklahoma law. Ball v. Wilshire Ins. Co., 2009 OK 38, ¶ 27, 221 P.3d 717, 726. In Ball we explained: When interpreting automobile insurance contracts, the court strives to strike a balance between freedom of contract principles and the state's interest in protecting the public. Statutorily mandated automobile insurance policies bear some characteristics of a public-law obligation under Oklahoma law and the full range of traditional freedom-of-contract principles do not apply. Parties to an insurance contract are nevertheless free to agree upon such terms as they wish, including whether to limit or restrict the insurer's liability, as long as their agreement does not contravene public policy. A contract violates public policy only if it clearly tends to injure public health, morals or confidence in the administration of law, or if it undermines the security of individual rights with respect to either personal liability or private property. Courts exercise their power to nullify contracts made in contravention of public policy only rarely, with great caution and in cases that are free from doubt. Id. (footnotes omitted). In the present case, the policy does not comply with the requirements set forth in § 3636(G), namely, that any rejection or selection of UM benefits apply uniformly to insureds under a policy. Accordingly, the two-tiered UM coverage under the Federated insurance contract contravenes § 3636(G), and is therefore, void against public policy. ¶31 Therefore, we answer the second certified question in the negative. Title 36 O.S.Supp.2014, § 3636 does not allow FADCO, a corporate named insured, to purchase uninsured motorist coverage for its directors, officers, partners, owners, and their family members who qualify as insureds, but to reject uninsured motorist coverage for other persons who also qualify as insureds under the policy. The policy issued by Federated to FADCO does not comply with Oklahoma law and therefore, Decedent is entitled to recover UM/UIM benefits under the subject policy. IV. THIRD CERTIFIED QUESTION If FADCO's insurance policy with Federated violates 36 O.S. § 3636, does the legislative intent or purpose of § 3636 impute the $1,000,000 uninsured motorist coverage policy limit FADCO purchased for its directors, officers, partners, owners, and their family members who qualify as insureds or [does] the $25,000 per person/$50,000 per accident minimum uninsured motorist coverage policy limit in § 3636 [apply] to the other persons who qualify as insureds? ¶32 Again, this Court's discretionary power to answer a federal certified question is set out in 20 O.S.2021 § 1602. We have previously declined to answer federal certified questions for various reasons. See Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶ 14, n.1, 392 P.3d 262, 266 (recognizing our prior decisions which declined to answer certified questions). In the present case, the question of what amount would be payable under the Federated policy was not decided by the federal district court and has not been briefed by the parties. Thus, we decline to answer this question in the first instance. V. CONCLUSION ¶33 We find that under Oklahoma law, a tortfeasor immune from suit due to the exclusive remedy provisions of 85A O.S.Supp.2019, § 5, is an uninsured motorist as a matter of law, and the accident vehicle qualifies as an uninsured motor vehicle pursuant to 36 O.S.Supp.2014, § 3636(C). We also conclude that § 3636 does not permit a corporate named insured to purchase a policy and elect UM coverage for one class of insureds while rejecting UM for other insureds under the same policy. Federated's policy providing optional UM/UIM coverage for its directors, officers, partners, owners, and their family members who qualify as insureds, but allowing a rejection of UM/UIM coverage for other persons who qualify as insureds under the same policy is contrary to § 3636, and thus, Oklahoma public policy. However, we decline to answer the third certified question in the first instance. CERTIFIED QUESTIONS ANSWERED IN PART. CONCUR: KAUGER, EDMONDSON, COMBS, GURICH, DARBY (by separate writing), JJ. CONCUR IN PART, DISSENT IN PART: KANE, C.J. (by separate writing), ROWE, V.C.J, WINCHESTER, KUEHN, J.J. FOOTNOTES 1 Appellant's Appendix, A-0102, Federated Mutual Insurance Company Policy No. 9840992, Section II(A), p. 2 of 12. 2 Appellant's Appendix, A-0102, Federated Mutual Insurance Company, Policy No. 9840992, Section II(A), p. 2 of 12; Appellant's Appendix A-0173, Federated Mutual Insurance Company, Policy No. 9840993, Section IV(A), p. 5 of 10. 3 Appellant's Appendix, A-0103, Federated Mutual Insurance Company, Policy No. 9840992, Section II(B)(3), p. 3 of 12; Appellant's Appendix A-0173, Federated Mutual Insurance Company, Policy No. 9840993, Section III(A), p. 2 of 10. 4 Appellant's Appendix, A-0195, Affidavit of Daniel Powers (Federated Property and Casualty Insurance Product Analyst), Attachment D. 5 Anaya-Smith did not contest the district court's order granting summary judgment to Federated on Anaya-Smith's bad faith claim. 6 The liability policy also provided the following exclusions: B. ExclusionsThis insurance does not apply to any of the following: * * * 3. Workers' CompensationAny obligation for which the "insured" or the insured's' insurer may be held liable under any workers' compensation disability benefits or unemployment compensation law or any similar law. 7 We cited to 85 O.S.1981 § 45 which provided: "No benefits, savings or insurance of the injured employee, independent of the provisions of this act shall be considered in determining the compensation or benefits to be paid under this act." This statute was superseded by 85 O.S.2011, § 413, and later repealed. The current statute, 85A O.S. 2021 §44, provides that only medical services, or any period of disability provided under a group plan, not paid for by the injured employee, will operate to reduce workers' compensation benefits. 8 The distinction between the two cases is that the widow of the decedent in Barfield sought to recover UM under the decedent's own policy of insurance; while in Torres, the decedent's beneficiaries sought to recover UM through the employer's policy of insurance. Compare Barfield, 1987 OK 72, ¶ 4, 742 P.2d at 1109, with Torres, 1993 OK 32, ¶ 3, 849 P.2d at 409. 9 In the case of the employee-passenger, his beneficiaries recovered under the Oklahoma Workers' Compensation Act. Id. ¶ 2, 849 P.2d at 409. 10 We do not see a significant distinction between the terms valid and binding in this case. The terms are synonyms and lead to the same interpretation of § 3636(G). It should also be noted that a named insured has two basic options under § 3636--select UM benefits or reject them. See 36 O.S.Supp.2014, § 3636(H) (Oklahoma UM election form only allows an insured to accept UM (in varying amounts) or reject the same. 11 "Valid." Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/valid. Accessed 11 Mar. 2024. 12 "Such." Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/such. Accessed 11 Mar. 2024. 13 The election form provides the insured may make one of four choices about UM coverage: The following are effective on forms required on or after April 1, 2005. The offer of the coverage required by subsection B of this section shall be in the following form which shall be filed with and approved by the Insurance Commissioner. The form shall be provided to the proposed insured in writing separately from the application and shall read substantially as follows: OKLAHOMA UNINSURED MOTORIST COVERAGE LAW Oklahoma law gives you the right to buy Uninsured Motorist coverage in the same amount as your bodily injury liability coverage. THE LAW REQUIRES US TO ADVISE YOU OF THIS VALUABLE RIGHT FOR THE PROTECTION OF YOU, MEMBERS OF YOUR FAMILY, AND OTHER PEOPLE WHO MAY BE HURT WHILE RIDING IN YOUR INSURED VEHICLE. YOU SHOULD SERIOUSLY CONSIDER BUYING THIS COVERAGE IN THE SAME AMOUNT AS YOUR LIABILITY INSURANCE COVERAGE LIMIT. Uninsured Motorist coverage, unless otherwise provided in your policy, pays for bodily injury damages to you, members of your family who live with you, and other people riding in your car who are injured by: (1) an uninsured motorist, (2) a hit-and-run motorist, or (3) an insured motorist who does not have enough liability insurance to pay for bodily injury damages to any insured person. Uninsured Motorist coverage, unless otherwise provided in your policy, protects you and family members who live with you while riding in any vehicle or while a pedestrian. THE COST OF THIS COVERAGE IS SMALL COMPARED WITH THE BENEFITS! You may make one of four choices about Uninsured Motorist Coverage by indicating below what Uninsured Motorist coverage you want: ____ I want the same amount of Uninsured Motorist coverage as my bodily injury liability coverage. ____ I want minimum Uninsured Motorist coverage $25,000.00 per person/$50,000.00 per occurrence. ____ I want Uninsured Motorist coverage in the following amount: $____________ per person/$______________ per occurrence. ____ I want to reject Uninsured Motorist coverage. _______________ Proposed Insured THIS FORM IS NOT A PART OF YOUR POLICY AND DOES NOT PROVIDE COVERAGE. 36 O.S.2011, § 3636(H). 14 See Fla. Stat. Ann. § 627.727(1) (West 1999) read, "However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy." (emphasis added). 15 Del. Code Ann. Tit. 18, § 3902 allowed an insured to reject UM coverage in writing, but did not contain a provision similar to Oklahoma's § 3636, which requires such rejection or acceptance of UM benefits apply equally to all insureds. 16 See Jarrell v. Viking Ins. Co. of Wisc., 2017 WL 1154925 (D. Colo. 2017) (finding Colo. Rev. Stat. Ann. § 10-4-609 allows insured to reject UM and does not impose an all-or-nothing approach); Federated Mut. Ins. Co. v. Vaughn, 961 So. 2d 816 (Al. Code § 32-7-23 allows rejection of UM coverage, but statutory language did not require rejection equally for all insureds); Jones v. Federated Mut. Ins. Co., 816 S.E.2d 105, 109 (Ga. Ct. App. 2018) (concluding Ga. Code Ann. § 33-7-11 allowed rejection of UM; statute did not contain language prohibiting tiered UM coverage in favor of some insureds but not others); Hlasnick v. Federated Mut. Ins. Co., 539 S.E.2d 274 (N.C. 2000) (N.C. Gen. Stat. Ann. § 20-279.21 required minimum floor amount of UM benefits but did not contain language requiring equal coverage for all insureds); Rarick v. Federated Service Insurance Company, 325 F.Supp.3d 590, 602 (E.D. Pa. 2018) (the federal court found Pennsylvania's statutory scheme specifically authorized different levels of UM/UIM coverage among different personnel of the insured corporation) (unlike § 3636, nothing in 75 Pa.C.S.A. § 1731 requires selection/rejection of UM on behalf of all insureds). DARBY, J., concurring specially: ¶1 I concur in the Court's judgment, but I write separately to further address two important items -- 1) the statutorily required election form to be furnished to prospective insureds regarding uninsured motorist (UM) coverage options, and 2) the language appearing in § 3636, paragraph G. ¶2 First, I would emphasize that the statute requires the offer of uninsured motorist coverage shall be made on a specific form which must be provided to the proposed insured in writing, separately from the application. 36 O.S. Supp. 2014 § 3636(H) (Form provided in majority opinion at footnote 4). Subsection H requires that the UM election form "shall read substantially as" it appears in the statute. Id. While some of the introductory language on the statutory form is geared toward household insurance purchasers and their family members, the substantive section lists the only four choices available to any proposed insured -- the first three choices are to purchase UM coverage (in various coverage amounts), and the fourth choice is to reject UM coverage. There are no options to carve out UM coverage for certain executives or owners, or to reject UM coverage for only certain insureds. ¶3 Federated offered FADCO the option of purchasing UM coverage using the statutory form, where FADCO rejected all UM coverage. (Defendant's Response to Plaintiff's Motion for Partial Summary Judgment and Cross Motion for Summary Judgment, Exhibit 1 - Declaration of Daniel Powers, Exhibit C; Record at A-0193). But on the same day, Federated apparently presented FADCO with an additional form titled "Oklahoma Commercial Auto Coverage Option" which deviated substantially from the election form specified by § 3636 -- offering a two-headed option of purchasing UM coverage for only some of the insureds under the policy, and rejecting UM coverage for other insureds under the same policy. (Defendant's Response to Plaintiff's Motion for Partial Summary Judgment and Cross Motion for Summary Judgment, Exhibit 1 - Declaration of Daniel Powers, Exhibit D; Record at A-0195). Federated's form, and its approach for presenting the statutorily required UM options, does not comply with the law. The statute requires an insured or applicant to purchase UM coverage with stated limits, or reject UM coverage outright, in like manner for all insureds under the policy. ¶4 Second, the language in the statute requires further discussion. Section 3636(G) explains the options available to a named insured or applicant who chooses to reject UM coverage or select lower limits. The first sentence of Section 3636(G) allows an insured or applicant "to reject" UM coverage altogether. The second sentence allows an insured or applicant to select "lower limits" of UM coverage. The remaining provisions in the first paragraph of (G) are not applicable to the issues before us. ¶5 The second paragraph of (G) begins with the word "after" - referring to after the choices made by the insured or applicant pursuant to the prior paragraph. The first line reads: "After selection of limits, rejection, or exercise of the option not to purchase uninsured motorist coverage...." This third option appears to be another way to describe an insured's or applicant's decision to reject UM coverage. ¶6 The third sentence in the second paragraph of (G) begins with the words "Such selection" which is referring back to the "selection of limits" option. The sentence continues with the other two options named in the first sentence of the second paragraph. This line goes on to make clear that whichever option the insured or applicant chooses, it "shall be valid for all insureds under the policy..." The sentence does not end there, but reads further "and shall continue until a named insured requests in writing that the uninsured motorist coverage be added to an existing or future policy of insurance." This creates an ambiguity. ¶7 One interpretation would allow an insured or applicant to first reject UM coverage or select lower limits for all named insureds, then add some amount of UM coverage to some but not all named insureds. But because the legislature used the word "the" to describe whatever UM coverage would be added, in my view the Legislature intended a subsequent choice which would also "be valid for all insureds under the policy." The statute is not completely clear on this point. But reading the statute in context with all provisions therein, and interpreting the provisions consistently, whatever an insured or applicant chooses initially, or subsequently, shall be valid for all insureds under the policy. KANE, C.J. CONCURRING IN PART AND DISSENTING IN PART: ¶1 I concur with the first proposition: Where Mr. Smith was injured and killed as a passenger in an employer-owned vehicle that had $7,000,000 of liability insurance and no proof was submitted to show the claim would exceed $7,000,000, but where Mr. Smith cannot recover under the policy because the workers' compensation exclusive remedy provision of 85A O.S., § 5 bars suit against the employer, the vehicle qualifies as an uninsured motor vehicle within the meaning of 36 O.S., § 3636(C). ¶2 However, I dissent to the majority's response to the second certified question: I believe that Oklahoma statutes and public policy allow a named insured, like FADCO, to choose to purchase optional UM coverage for some persons who qualify as an insured (here, its officers, directors, etc.) while rejecting such coverage for any other person who qualifies as an insured. ¶3 I do not agree with the majority's interpretation of 36 O.S., § 3636. There is nothing in the statute or case law which compels a named insured to make an "all or nothing" purchasing decision when it comes to UM coverage and this type of argument has been rejected by courts in other jurisdictions as well. See Jones v. Federated Mut. Ins. Co., 816 S.E.2d 105, 109 (Ga. App. 2018) ("[Plaintiffs] have pointed to no language within the UM Statute as imposing an 'all or nothing' restriction upon uninsured motorist coverage; and we find none."). Such coverage is purely optional under Oklahoma's statutes. While it plainly indicates that a policyholder's coverage decisions bind all other insureds under the policy, there is nothing in the statutory text requiring a policyholder to make the same decision for each class of persons covered under the liability policy. The Majority construes the words in Section 3636(G) according to their plain and ordinary meaning, arguing the statute is unambiguous. To support this argument, the Majority directs us to the statutory language, in that it was written in the singular form (i.e., selection, rejection) as opposed to the plural form (i.e., selections, rejections). See 36 O.S. § 3636(H). The Majority argues it is apparent from the singular language used in Section 3636(H), that the legislature intended only one action cover all insureds. Thus, the statute gives a named insured only two options -- elect or reject UM benefits. I disagree. ¶4 In reaching this conclusion, the Majority had to answer a question of first impression before this Court - whether limiting UM coverage to certain classes of insureds is against public policy. The Majority looked to other states that previously considered UM policies that provided different levels of coverage to different classes of insureds to determine if those policies violated public policies. Anaya-Smith relies on Varro v. Federated Mutual Ins. Co., 854 So. 2d 726 (Fla. Dist. Ct. App. 2003) and Balagtas v. Bishop, 910 N.E.2d 789 (Ind. Ct. App. 2009) to support her position that UM statutes which limit UM coverage for certain classes of insureds are against public policy. In Varro, the court held there is "an express statutory policy prohibiting this type of discrimination between insureds" because the Florida UM statute only permits "a written rejection of the coverage on behalf of all insureds under the policy." Varro, 854 So. 2d at 729 (internal citations omitted). Similarly, in Balagtas, the Indiana court held that "the election or rejection of coverage must apply to all insureds." Balagtas, 910 N.E.2d at 795. ¶5 However, these cases are distinguishable because the UM statutes in the Varro and Balagtas cases contain very different statutory language than the language used in Oklahoma's UM statute. For example, in Varro, Florida's UM statute requires UM coverage unless "an insured named in the policy makes a written rejection of the coverage on behalf of all insures under the policy." See Varro, 854 So. 2d at 728 (emphasis added)(internal citations omitted). Based on that language, the court in Varro ruled that a written rejection must be made for "all" insureds in order for it to be effective. Id. ¶6 Importantly, this language is not present in Oklahoma's UM statute. Instead, Oklahoma's UM statute provides that selection, rejection, or option not to purchase coverage is "valid for all insureds" -- meaning the named insured's decision binds all insureds. See 36 O.S., § 3636(G). In this regard, Oklahoma's UM statutory language is more in line with the majority of other states who have encountered similar types of UM policies, which limit UM coverage for certain classes of insureds, but where their respective state has held the statute as not against public policy. ¶7 For example, in Stoms v. Federated Servs. Ins. Co., 125 A.3d 1102 (Del. 2015), the Delaware Supreme Court addressed the validity of an insurance policy providing for different levels of UM coverage where the applicable statute permitted the insured to reject all UM coverage. In upholding the policy, the court explained: [o]nce an insured has purchased the statutory minimum, the insured is free as a matter of contract to procure as much or little optional insurance as it wants, and to allocate it among drivers as it chooses . . . To hold that any coverage above the statutory minimum--such as uninsured motorist coverage, for which no level of coverage is statutorily mandated--has to be afforded to all who benefit from a policy would dissuade employers from buying anything above the statutory minimum. Id. 1106-07. Like the facts in this case, in Stoms, the court upheld the policy which allowed policyholders to elect to obtain UM coverage for certain classes of insureds, specifically its directors, officers, partners, or owners of the employer and to reject it for all other insureds. Id. The Majority tries to distinguish this case from Stoms, despite the overwhelming similarity in the policy/levels of UM coverage for certain classes of insureds. The Majority argues the Delaware UM statute1 does not contain any language similar to § 3636(G) because it does not "apply equally to all insureds." I find this one distinction unpersuasive. Allowing a policyholder to extend UM coverage to some classes of insureds, rather than limiting their choices to complete rejection or universal acceptance of UM coverage, only furthers the goals of 36 O.S., § 3636. ¶8 Additional courts have reached similar outcomes. See Jarrell v. Viking Ins. Co. of Wisconsin, 2017 WL 1154025, at * 3 (D. Colo. Mar. 28, 2017) ("Given a policyholder's right to decline coverage, Colorado law allows automobile liability policyholders to elect to obtain UM/UIM coverage for some 'insureds' but not others."); Federated Mut. Ins. Co. v. Vaughn, 961 So. 2d 816, 819 (Ala. 2007)(". . . because the greater typically includes the lesser, the right to [totally] reject [sic] UM coverage implies the right to reject it partially."); Hlasnick v. Federated Mut. Ins. Co., 539 S.E.2d 274, 277 (N.C. 2000) (rejecting public policy argument because statute did not mandate that UM coverage be equally applied to all insureds); Rarick v. Federated Service Ins. Co., 325 F.Supp.3d 590, 601-03 (E.D.Pa. 2018) (rejecting public policy challenge to providing different levels of UM coverage). ¶9 While the cases referenced above can provide guidance, it is Oklahoma law and public policy that determines the outcome of this case. In this regard, we have instructed that: [T]he insurance coverage contract required by statute is to be liberally construed in favor of the object to be accomplished . . . . The primary purpose of including the uninsured motorist coverage in an insurance policy is to protect the insured from the effects of personal injury resulting from an accident with an uninsured/underinsured motorist. State Farm Auto. Ins. Co. v. Greer, 1989 OK 110, ¶ 6, 777 P.2d 941, 942. "However, once it appears that the legislative purpose of § 3636 has been served, the statute's mandate is satisfied." May v. Nat'l Union Fire Ins. Co. of Pittsburg, Pennsylvania, 1996 OK 52, ¶ 13, 918 P.2d 43, 48. Moreover, "[w]hen interpreting automobile insurance contracts," a court should strive "to strike a balance between freedom of contract principles and the state's interest in protecting the public." Ball v. Wilshire Ins. Co., 2009 OK 38, ¶ 27, 221 P.3d 717, 726. Thus, "[p]arties to an insurance contract are . . . free to agree upon such terms as they wish, including whether to limit or restrict the insurer's liability, as long as their agreement does not contravene public policy." Id. ¶10 The Oklahoma Legislature, not this Court or Congress, is primarily vested with the responsibility to declare public policy of this state. See Siloam Springs, 2017 OK 14, ¶ 21, 392 P.3d at 268. We have had occasion to find contracts to contravene public policy but only when said contract "clearly tends to injure public health." Shepard v. Farmers Ins. Co., 1983 OK 103, ¶ 3, 678 P.2d 250, 251. We have previously instructed that the power to invalidate a contract should be exercised "rarely, with great caution and in cases that are free from doubt." Id. ¶11 We have interpreted 36 O.S., § 3636 and the limits of UM coverage numerous times over the years. In Shepard v. Farmers Insurance Co., 1983 OK 103, 678 P.2d 250, in a response to a certified question, we considered whether a clause in a UM endorsement excluding a relative of the insured living in the same household if the relative owned an automobile violated the public policy expressed in 36 O.S., § 3636. Id. We held the exclusion was "an unambiguous contract provision" that did not contravene the UM Act nor its underlying public policy of providing coverage for tortious conduct which would otherwise go uncompensated. Id. ¶ 8, at 251-52. In reaching this conclusion, we distinguished the exclusion from those exclusions we had previously invalidated noting that the plaintiff had not paid a premium for the policy and was not defined as an insured by virtue of the policy terms. Id. ¶ 7, at 252. ¶12 Next, in Graham v. Travelers Insurance Co., 2002 OK 95, ¶ 1, 61 P.3d 225, 226-27, the issue before us was whether, in a commercial policy, UM/UIM coverage that provided for vehicles owned by the named insured must also be provided to employees using their own personal vehicles, which was limited by an endorsement to liability coverage. Id. Graham was driving his personal vehicle while in the course and scope of his employment when he was injured by an uninsured driver. Id. ¶ 3, at 227. The employer maintained an automobile policy that included UM/UIM coverage. Id. The policy provided liability insurance for employees using personal vehicles on company business, but limited UM coverage to only company owned vehicles. Id. ¶¶ 9-13, at 228-29. Because Graham was driving a personal vehicle at the time of the accident, the Court found that "Graham's vehicle clearly was insured for liability and was not insured, under the provisions of the policy, for UM/UIM." Id. ¶ 13, at 229. ¶13 Graham argued, like Anaya-Smith does here, that those covered for liability must also be covered for UM/UIM under Oklahoma's UM statute. Id., ¶ 5, at 227. However, we rejected these arguments in Graham, pointing out that the employer and the insurer are the parties to the contract, the employer paid the premium, and the employer accepted UM/UIM coverage and limited it to company-owned vehicles. Id. ¶¶ 18-19, at 229-30. We concluded that an employer is "free to exclude employees operating their own vehicles from UM/UIM coverage through the method of limiting UM/UIM coverage to vehicles owned by the company." Id. ¶ 21, at 230. However, we did emphasize an important part of our decision was that Graham owned the vehicle involved and thus, had "the opportunity to accept or reject UM/UIM coverage for his personal protection." Id. ¶ 20, at 230. ¶14 In Ball v. Wilshire Insurance Co., 2009 OK 38, ¶¶ 25-26, 221 P.3d 717, 725-26, in a response to another certified question, we considered whether an insurer who denied UM benefits to a passenger based on an invalid exclusion in a liability policy acted in bad faith. In Ball, we re-examined our previous case law and emphasized the need to "protect the policyholder's choice of self and family protection" but at the same time, noted that there was no clear expression in our case law obligating the insured to provide UM protection to persons merely by reason of their occupancy in a vehicle belonging to a named insured. Id. ¶ 34, at 729. We concluded the insurer had not acted in bad faith because the law was unsettled under these facts. Id. ¶15 More recently, in Lane v. Progressive Northern Insurance Co., 2021 OK 40, ¶ 1, 494 P.3d 345, 346, in a response to a certified question, we considered whether an exclusion which operates to deny UM coverage to an insured who recovers at least the mandated minimum in the form of liability coverage contravenes § 3636. We held the exclusion invalid because it effectively annulled UM coverage for which a premium had been paid. We concluded: . . . the exclusion does not merely modify the scope of available uninsured-motorist coverage--it outright negates that coverage. While the policyholder holds an option to accept uninsured-motorist coverage, the insurer carries an obligation to provide it. Section 3636 requires uninsured-motorist coverage separate from liability coverage, whether it is provided within or supplemental to the basic liability policy. Progressive's blanket exclusion effectively ensures that only one form of coverage--for motor-vehicle liability--will ever be available, even though its policyholder has paid for both. Id. ¶ 13, at 250. We emphasized in Lane that the purpose of § 3636 "is to 'assure each [UM insured] person the full contracted coverage' for which a premium has been paid." Id. ¶ 16, at 351 (internal citations omitted). Because the policyholders paid premiums for UM coverage that expressly included the plaintiff, the insurer's artfully drafted exclusion could not be allowed to dilute that coverage. Id. ¶¶ 16-17, 19, at 251-53. ¶16 In short, based on the analysis above, I conclude that FADCO's choice to select UM coverage for some classes of insureds and reject UM coverage for others does not contravene the express language of the Oklahoma Uninsured Motorist Act nor its underlying policy of providing coverage for tortious conduct which would otherwise go uncompensated. Section 3636 requires insurers to supply uninsured-motorist coverage in addition to standard liability coverage, but it offers the insured a choice: accept, reject, or select lower limits. There is no dispute that Federated offered FADCO the option of accepting or rejecting UM insurance via the statutorily approved form, and FADCO chose to reject coverage. FADCO then chose to provide UM coverage to directors, officers, and certain others by executing a separate form. ¶17 Had FADCO rejected all UM coverage outright, the policy would be in compliance with the statute although Anaya-Smith would have no claim to benefits. If an outright rejection for all persons is permissible, then providing additional coverage for at least some persons does not contravene the statute's text or purpose. As we explained in Ball, "[e]xtensive safeguards have been enacted in § 3636 to make certain that the policyholder's choice is knowingly and freely made, but the decision to purchase or decline to purchase UM coverage is left to the policyholder." Ball, 2009 OK 39, ¶ 28, 221 P.3d at 727. Here, the limitation on UM coverage was an unambiguous contract term agreed to by the parties -- FADCO and Federated. Pursuant to these terms, the decedent "clearly was insured for liability and was not insured, under the provisions of the policy, for UM/UIM." See Graham, 2002 OK 95, ¶ 13, 61 P.3d at 229. Allowing a policyholder to extend UM coverage to some classes of insureds, rather than limiting their choices to complete rejection or universal acceptance of UM coverage, only furthers the goals of 36 O.S., § 3636 -- to promote and safeguard UM coverage -- while still honoring freedom of contract principles. See id. This conclusion recognizes the Court's power to nullify contracts in contravention of public policy and that this power should be exercised "rarely, with great caution and in cases that are free from doubt." Ball, 2009 OK 38, ¶ 27, 221 P.3d at 726. ¶18 Therefore, I would answer the second certified question with a "yes." Title 36 O.S. § 3636 does allow FADCO, a corporate named insured, to purchase uninsured motorist coverage for its directors, officers, partners, owners, and their family members who qualify as insureds, but to reject uninsured motorist coverage for other persons who qualify as insureds. The policy issued by Federated to FADCO does not contravene Oklahoma law or public policy. Thus, the insured should be able to decide the scope of what optional UM coverage it wants to pay for, and what it does not want to pay for. ¶19 The third certified question does not require a response if the second question is answered correctly. ¶20 I respectfully dissent. FOOTNOTES 1 18 Del Code § 3902(a)(1) provides: No such coverage shall be required in or supplemental to a policy when rejected in writing, on a form furnished by the insurer or group of affiliated insurers describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy or upon any reinstatement, substitution, amendment, alteration, modification, transfer or replacement thereof by the same insurer unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as uninsured vehicle coverage.

3935b50f-794e-410a-9ede-1dfc1522111a

IN RE GUARDIANSHIP OF L.A.C.

oklahoma

Oklahoma Supreme Court

IN RE GUARDIANSHIP OF L.A.C.2024 OK 2Case Number: 120500Decided: 02/06/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE GUARDIANSHIP OF L.A.C., an Incapacitated Person, AMY MEYER, Plaintiff/Appellant, v. ALLISON WHITE, and W. SCOTT WHITE, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III HONORABLE JAMES W. KEELEY, TRIAL JUDGE ¶0 After being diagnosed with various progressive, degenerative diseases, Ward executed an advance directive instructing that her life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. Ward was later hospitalized and a PEG tube was inserted to provide artificially administered nutrition and hydration, contrary to the terms of her advance directive. After several guardianship proceedings, a trial was held on whether Ward's PEG tube should remain in place. The trial court held that revocation of an advance directive is weighed by the clear and convincing standard of proof. The Court of Civil Appeals reversed in part, finding that the proper standard of proof is preponderance of the evidence. On certiorari review, we hold that an incapacitated or incompetent person retains the legal right to revoke their advance directive and revocation of an advance directive is weighed by the clear and convincing standard of proof. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. Robert B. Sartin, BARROW & GRIMM, P.C., Tulsa, Oklahoma and James C. Milton, Jonathan L. Rogers, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma for Plaintiff/Appellant Tadd J.P. Bogan, JONES, GOTCHER & BOGAN, P.C., Tulsa, Oklahoma for Defendant/Appellee W. Scott White Jenny Proehl-Day, NEW DAY LEGAL, PLLC, Bixby, Oklahoma for Defendant/Appellee Allison White OPINION ROWE, V.C.J.: BACKGROUND ¶1 Beginning in 2011, L.A.C. ("Ward") began suffering from various progressive, degenerative diseases.1 Due to the progressive nature of her diagnoses and in an effort to plan her estate, Ward executed an Advance Directive for Health Care pursuant to 63 O.S. § 3101.4(A) on November 8, 2013.2 The terms of Ward's Advance Directive state, in relevant part, the following: (1) Terminal Condition. If I have a terminal condition, that is, an incurable and irreversible condition that even with the administration of life-sustaining treatment will, in the opinion of the attending physician and another physician, result in death within six (6) months: ... (B) I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. ... (2) Persistently Unconscious. If I am persistently unconscious, that is, I have an irreversible condition, as determined by the attending physician and another physician, in which thought and awareness of self and environment are absent: ... (B) I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. ... (3) End-Stage Condition. If I have an end-stage condition, that is, a condition caused by injury, disease, or illness, which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective: ... (B) I direct that my life not be extended by life-sustaining treatment, including artificially administered nutrition and hydration. ... IV. General Provisions ... d. In the absence of my ability to give directions regarding the use of life-sustaining procedures, it is my intention that this advance directive shall be honored by my family and physicians as the final expression of my legal right to choose or refuse medical or surgical treatment including, but not limited to, the administration of life-sustaining procedures, and I accept the consequences of such choice or refusal. With time, Ward's physical condition began to worsen, and in March 2018 she lost her ability to speak. ¶2 Ward has two children, Allison White and Dr. W. Scott White ("Daughter" and "Son," collectively "Children"), and one sister, Amy Meyer ("Sister"), who are parties to this action. On May 12, 2021, Daughter was appointed Special Guardian on an Emergency Basis over Ward for a period of thirty days while Ward was hospitalized for aspiration pneumonia.3 As Ward's special guardian, Daughter authorized the insertion of a percutaneous endoscopic gastronomy ("PEG") tube to hydrate and feed Ward, despite the terms of Ward's advance directive. Following her release from the hospital, Ward was moved to an assisted living facility where she continues to reside. ¶3 Sister filed an Objection to the appointment of Daughter as Ward's guardian, asserting she was named attorney in fact for Ward.4 The trial court ultimately appointed an independent third party, Valerie Evans, Esq. ("GAL"), as Guardian Ad Litem for Ward.5 Additionally, the trial court temporarily suspended Ward's Advance Directive and ordered that the PEG tube remain in place until the matter could be resolved. ¶4 Following the appointment of GAL, Children and Sister entered into a Settlement Agreement ("Agreement") in which they agreed to appoint Cara Wells, Esq., ("Guardian") as Guardian over Ward's person and property. Per the terms of the Agreement, the Guardian's primary responsibilities included: being an intermediary between the assisted-living facility and Ward's family, monitoring any Agreement violations, ensuring the parties comply with the Agreement, and consulting with Ward's family and court appointed attorney regarding long-term care facilities for Ward. Additionally, the parties agreed that the Advance Directive would remain in place and "[a]bsent discretionary action by [Ward's] physicians...there shall be no effort to remove the PEG tube, or withdraw nutrition or hydration, or accelerate [Ward's] death with medication of whatever kind."6 On September 22, 2021, the trial court entered an Agreed Order Appointing General Guardian, where they found Ward to be an incapacitated person and adopted the terms of the parties' Agreement. ¶5 In her first report to the trial court, GAL noted Ward was nonverbal but cognizant and able to communicate via facial expressions, hand gestures, and by moving her feet. Based on her observations, GAL recommended that Ward's health care providers comply with her Advance Directive and remove the PEG tube. GAL concluded that "[Ward] is a proud woman. She is cognizant of what is happening around her. She is in the end stage of her life, and she is ready to go naturally. She would not want the peg tube."7 ¶6 A second Guardian Ad Litem Report observed that Ward wanted the tube removed. According to the second report, Ward's hospice nurses "felt death to be imminent giving her days to weeks to live."8 (GAL reported that Ward's treating physician, Dr. Carment, stated that Ward's condition had stabilized, and death was not imminent--"her condition is progressive, but he defines her level of care as palliative rather than end stage").9 ¶7 Daughter filed an Emergency Motion seeking appointment as Successor Guardian of Ward, arguing, among other things, that the terms of the Agreement allowing the PEG tube to remain in place is in violation of Ward's Advance Directive.10 Though Son objected to Daughter's request to become successor guardian of Ward, he agreed that the placement of Ward's PEG tube was in violation of her advance directive. Sister argued that the Agreement was conclusive and Ward's PEG tube should remain in place pursuant to the Agreement, regardless of the advance directive. ¶8 After the parties failed to mediate a resolution at Settlement Conference, trial began on April 13, 2022, on the issue of whether Ward's PEG tube should remain in place or be removed. Children argued that Ward's Advance Directive should be enforced, and the PEG tube should be removed. Conversely, Sister argued that Ward's PEG tube should not be removed, arguing Ward revoked her Advance Directive. ¶9 During trial, GAL testified that she visited Ward along with Ward's attorney and Guardian. GAL testified that: [I]t appeared to us that she was saying that, yes, I'm -- I'm ready to go. That's what it appeared to us initially, but then we would ask again because we wanted to be sure, because this is a weighty -- weighty issue and her response, you know, is -- is critical in our view. And it was apparent she was getting tired. You know, she was starting to twitch more, so we gave her a break.11 During the break, the group spoke with Ward's hospice nurse who stated that removal of the PEG tube would cause Ward pain and that she would be aware she was starving to death. Ward's attorney, who was present at the meeting, testified that: [W]e felt like we had an answer that, yes, she wanted that PEG tube to be removed. And then we took that break because we had a call from [the hospice nurse]. And when we came back we felt it was our obligation to tell her about the PEG tube removal. . . . In our opinion, at the beginning, before we took that break, it was hard to tell, but we thought that we had a yes answer. But afterwards it was -- we are very -- pretty sure that she does not want that PEG tub[e] removed because she doesn't want to feel the discomfort.12 ¶10 After the group decided they needed to explain to Ward that removal of the PEG tube would cause pain, GAL stated that in her opinion and understanding of Ward's non-verbal expressions, Ward is "ready to go, but not ready to go by starving to death."13 GAL concluded that Ward "wishes to continue to receive artificial hydration and nutrition through her PEG tube."14 Dr. Carment, as well as the hospice nurse, testified that if the PEG tube were removed, they could administer medication that would help ease any discomfort. Dr. Carment testified that in his opinion, Ward was in an end-stage condition and had less than six months to live. ¶11 On May 17, 2022, the trial court entered a Journal Entry of Judgment where it held, in relevant part, the following: 13. It was further argued that [Ward] had revoked her 2013 Advance Directive shortly before trial. The Court finds that [Ward's] purported revocation was not free from serious doubt or highly probable. Proof of revocation failed to meet the clear and convincing standard. Even assuming arguendo that the evidentiary standard is a preponderance standard, the Court adopts [Son's] argument that even the preponderance of the evidence standard would not have been met to satisfy a showing or revocation of [Ward's] Advance Directive. ... 15. As a matter of first impression, the Court deems that the standard for revoking an advance directive requires clear and convincing evidence due to the prevalence of the clear and convincing standard generally used in Title 30 guardianship cases, and 63 O.S. § 3101 et seq., and 63 O.S. § 3131.1 et seq. requires clear and convincing evidence. 16. The Court notes that [Ward's] purported revocation of her 2013 Advanced Directive is not reflected in her medical records. The trial court held that the placement of Ward's PEG tube violated the express terms of Ward's Advance Directive and ordered "[that the language of the Agreement which states] 'there shall be no effort to remove the PEG tube or withdraw nutrition or hydration' is set aside as stricken"15 as it restricts the "public policy to allow for individual decision making with an advance health directive."16 ¶12 On appeal, COCA held that preponderance of the evidence standard is the proper standard to revoke an advance directive and under that standard, the weight of the evidence shows Ward revoked her Advance Directive. We granted Children's petition for certiorari to address whether an incapacitated or incompetent person may revoke their advance directive and to define the standard of proof required for revocation of an advanced directive pursuant to 63 O.S. § 3101.6. STANDARD OF REVIEW ¶13 On certiorari review, Children ask us to define the standard of proof for revocation of an advance directive pursuant to 63 O.S. § 3101.6 and to answer whether an incompetent person, Ward in this case, is capable of revoking an advance directive. Legal questions involving statutory interpretation are subject to de novo review. Casey v. Casey, 2005 OK 13, ¶ 7, 109 P.3d 345, 348. In exercising de novo review, we possess "plenary, independent, and non-deferential authority to examine the issues presented." Lee v. Bueno, 2016 OK 97, ¶ 6, 381 P.3d 736, 740. In an action at law before a trial judge as the trier of facts, "where there is any competent evidence reasonably tending to support the [judgment]...this Court will not disturb...the trial court's judgment based thereon." Florafax Intern., Inc. v. GTE Market Resources, Inc., 1997 OK 7, ¶ 13, 933 P.2d 282, 287. DISCUSSION A. An Incapacitated or Incompetent Person Retains the Legal Right to Revoke Their Advance Directive. ¶14 Children argue on appeal that Ward's incompetency renders her legally incapable of forming the necessary intent to revoke her advance directive. Under Title 63, an incompetent person is one who "has been declared legally incompetent to make decisions affecting medical treatment or care. . . ." 63 O.S. § 3080.2(4)(c). Here, Ward was declared incapacitated in the Guardianship proceeding. According to the Oklahoma Guardianship and Conservatorship Act: Whenever in the Oklahoma Statutes the term "incompetent person" appears and refers to a person who has been found by a district court to be an incompetent person because of an impairment or condition...it shall have the same meaning as "incapacitated person" but shall not include a person who is a partially incapacitated person; 30 O.S. § 1-111(A)(12). ¶15 Under 63 O.S. 3101.6, "[a]n advance directive may be revoked in whole or in part at any time and in any manner...without regard to the declarant's mental or physical condition." 63 O.S. 3101.6(A) (emphasis added). Viewing the statutes in pari materia, we do not agree with Children that Ward is legally incapable of revoking her advance directive. ¶16 Pursuant to § 3101.6, our examination of a revocation should be independent of the declarant's mental or physical condition. Id. The Act does not place limitations on one's ability to revoke their advance directive. Specifically, the statute states that any evaluation of a revocation is made "without regard to the declarant's mental or physical condition." Id. We read the phrase "without regard to the declarant's mental or physical condition" to mean an incapacitated or incompetent person retains the legal right to revoke their advance directive. Id. Accordingly, we hold that Ward retains the legal right to revoke her advance directive, despite being legally incapacitated. B. The Standard of Proof Required for Revocation of an Advance Directive Under 63 O.S. 3101.6 is Clear and Convincing Evidence. ¶17 Children argue that, in the absence of statutory language mandating a requisite standard of proof, and when an individual interest is at stake, we must follow the clear and convincing standard when analyzing the revocation of an advance directive. The clear and convincing standard is a "measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established." Matter of Adoption of M.A.S., 2018 OK 1, ¶ 11, 419 P.3d 204, 208. Additionally, Children argue that the Fourteenth Amendment of the United States Constitution protects the right to refuse unwanted medical treatment, including refusal of life-sustaining measures as stated in Cruzan, and that Ward has exercised that right in her Advance Directive. (Cruzan v. Dir. Missouri Dept. of Health, 497 U.S. 261, 278 (1990)). ¶18 Sister argues to the contrary that there is an overarching policy in Title 63 favoring the provision of life-sustaining treatment, which is indicative of the Legislature's intent to impose a more lenient standard of proof when analyzing the revocation of an advance directive.17 Sister further argues that the text of § 3101.6, stating that an advance directive may be revoked "at any time and in any manner," suggests that the proper standard of proof is a preponderance of the evidence standard. 63 O.S. § 3101.6(A). Preponderance of the evidence means that upon reviewing all evidence in the case, the proposition asserted by the party with the standard of proof is more likely true than not.18 ¶19 We look to the words of the statute to glean legislative intent: The goal of any inquiry into the meaning of a statutory enactment is to ascertain and give effect to the intent of the legislature. The law-making body is presumed to have expressed its intent in a statute's language and to have intended what the text expresses. If a statute is plain and unambiguous, it will not be subjected to judicial construction, but will receive the effect its language dictates. Only where the intent cannot be ascertained from a statute's text, as when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be employed. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219 (internal citations omitted). ¶20 Accordingly, to determine the standard required for revocation of an advance directive, we must look to the text of 63 O.S. § 3101.6, which states: A. An advance directive may be revoked in whole or in part at any time and in any manner by the declarant, without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation. B. The attending physician or other health care provider shall make the revocation a part of the declarant's medical record. 63 O.S. § 3101.6. ¶21 The legislative purpose of the Oklahoma Advance Directive Act ("Act") recognizes the right of an individual to control their own medical care, including the right to decline treatment or direct that it be withdrawn, and to acknowledge that that right is protected by the Constitution of the United States. 63 O.S. § 3101.2(A)(1)-(2). The Act states: A. The purpose of the Oklahoma Advance Directive Act is to: 1. Recognize the right of individuals to control some aspects of their own medical care and treatment, including but not limited to the right to decline medical treatment or to direct that it be withdrawn, even if death ensues; 2. Recognize that the right of individuals to control some aspects of their own medical treatment is protected by the Constitution of the United States and overrides any obligation the physician and other health care providers may have to render care or to preserve life and health; 3. Recognize that decisions concerning one's medical treatment involve highly sensitive, personal issues that do not belong in court, even if the individual is incapacitated, so long as a proxy decision-maker can make the necessary decisions based on the known intentions, personal views, or best interests of the individual. If evidence of the individual's wishes is sufficient, those wishes should control; if there is not sufficient evidence of the individual's wishes, the proxy's decisions should be based on the proxy's reasonable judgment about the individual's values and what the individual's wishes would be based upon those values. The proper role of the court is to settle disputes and to act as the proxy decision-maker of last resort when no other proxy is authorized by the individual or is otherwise authorized by law; 4. Restate and clarify the law to ensure that the individual's advance directive for health care will continue to be honored during incapacity without court involvement; and 5. Encourage and support health care instructions by the individual in advance of incapacity and the delegation of decision-making powers to a health care proxy. 63 O.S. § 3101.2(A) (emphasis added). ¶22 Our reading of § 3101.6 must be compatible with the overarching lens that the Legislature intended to protect an individual's right to have autonomy over their own health care and respect an individual's wishes as expressed in their advance directive. If an individual has an advance directive that states their preferences for their end-of-life care, the statute directs the individual's wishes will be honored during incapacity without court involvement.19 Because the statute requires that we show great deference to the wishes of an individual as expressed in their advance directive, we find that a higher standard of proof is necessary to support a revocation of an advance directive. ¶23 Although the text of § 3101.6 does not explicitly set out a standard of proof for revocation of an advance directive, other related statutes within Title 63 section require a clear and convincing standard. "Different statutes on the same subject are generally to be viewed as in pari materia and must be construed as a harmonious whole." Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, ¶ 19, 981 P.2d 1253, 1261. "All legislative enactments in pari materia are to be interpreted together as forming a single body of law that will fit into a coherent symmetry of legislation." Id. The conclusion that clear and convincing evidence is the required standard for revocation is supported by other acts in Title 63 that deal with end-of-life care. ¶24 In the Hydration and Nutrition for Incompetent Patients Act,20 there is a presumption that "every incompetent patient has directed his health care providers to provide him with hydration and nutrition to a degree that is sufficient to sustain life." 63 O.S. § 3080.3. However, that presumption can be overcome by "clear and convincing evidence that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him. . . ." 63 O.S. § 3080.4(A)(2). Additionally, the Hydration and Nutrition for Incompetent Patients Act states that the presumption is overcome by an "advance directive [that] has been executed pursuant to the Oklahoma Advance Directive Act specifically authorizing the withholding or withdrawal of nutrition and/or hydration." 63 O.S. § 3080.4(A)(5).21 ¶25 The Oklahoma Do-Not-Resuscitate Act echoes a similar sentiment, affirming that life-sustaining measures should not be used when an attending physician of an incapacitated person "knows by clear and convincing evidence that the incapacitated person, when competent, decided on the basis of information sufficient to constitute informed consent that the person would not have consented to the administration of cardiopulmonary resuscitation. . . ." 63 O.S. § 3131.4(A)(4). Although we agree with Sister that the overall policy behind Title 63 favors life-sustaining measures, applying a lower standard of proof would hinder the statute's explicit provisions allowing Ward to override her healthcare providers' obligation to preserve her life. ¶26 Additionally, Sister argues that the language of § 3101.6 allowing revocation "at any time and in any manner...without regard for the declarant's mental or physical condition" indicates the Legislature's intent to lower the standard of proof. 63 O.S. § 3101.6(A). We read this language as addressing how one may revoke an advance directive, rather than being indicative of the proof required to support a finding of revocation. We do not consider the statute's lack of exacting requirements regarding the manner of revocation as lowering the bar for determining whether or not a revocation has occurred. The Act allows for revocation of an advance directive by whatever means available, so long as the act of revocation is sufficiently clear and convincing. The legislative intent of the Advance Directive Act is clear: we must recognize the right of an individual to refuse medical care and treatment, and ensure that in the event of incapacity, that right is honored. 63 O.S. § 3101.2. Based on our reading of Title 63, the revocation of an advance directive must be weighed by the clear and convincing evidence standard. ¶27 Our reading of § 3101.6 is also consistent with Constitutional mandates regarding end-of-life-care. The United States Supreme Court has stated that the right to refuse unwanted medical treatment is protected by the United States Constitution. Cruzan, 497 U.S. at 278. In Cruzan, the United States Supreme Court addressed whether the United States Constitution prohibited a state from requiring clear and convincing evidence as the standard when a guardian sought to discontinue life sustaining measures for a person in an unresponsive state. Id. at 284. The Court in Cruzan "mandated an intermediate standard of proof--'clear and convincing evidence'--when the individual interest at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money.'" Id. at 282. ¶28 We similarly reiterated this sentiment where we discussed removal of life sustaining therapy for an infant and agreed that "the clear and convincing evidence standard is traditionally applied in equity for allocation of the risk of error when important interests are at stake." Baby F. v. Oklahoma County Dist. Court, 2015 OK 24, ¶ 19, 348 P.3d 1080, 1087. In Baby F, we required that, prior to withdrawing life-sustaining medical treatment on behalf of a child in state custody, the trial court must determine by clear and convincing evidence that doing so is in the best interest of the child. Id. ¶ 24, 348 P.3d at 1088-89. ¶29 In the present case, if the court fails to find Ward revoked her advance directive, the potential consequence is the hastening of her death. In other words, in this case, the lower preponderance standard might actually promote the preservation of life. Even so, applying the preponderance of evidence standard to revoking an advance directive is contrary to § 3106's explicit intent. The purpose of § 3101.6 is to allow an individual to make their own end-of-life decisions, of their own free will. This requires that Ward's expressed wishes regarding her end-of-life treatment will continue to be honored during her incapacity without court involvement. 63 O.S. § 3101.2(A)(4). Ward consciously chose not to prolong her life through artificial nutrition and hydration after being diagnosed with various progressive, degenerative diseases that she knew would ultimately lead to her death. And although Title 63 provides that life-sustaining treatment will be provided absent an election otherwise, the statute explicitly protects an individual's right to withdraw medical treatment "even if death ensues." 63 O.S. § 3101.2(A). CONCLUSION ¶30 The Oklahoma Advance Directive Act requires that Ward's advance directive for health care be honored during incapacity without court involvement. The trial judge properly weighed the evidence before him and his judgment was supported by competent evidence. We hold that an incapacitated or incompetent person retains the legal right to revoke their advance directive. We further hold that 63 O.S. § 3101.6 requires a clear and convincing standard of proof for the revocation of an advance directive. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED. Rowe, V.C.J., Kauger, J. (by separate writing), Winchester, Edmondson, Combs, Gurich and Kuehn, JJ., concur. Darby, J. (by separate writing), concurs in result. Kane, C.J. (by separate writing), dissents. FOOTNOTES 1 Among other things, Ward is impaired by acute Respiratory Failure, Corticobasal Degeneration, Parkinson's Disease and Dementia. 2 It is undisputed that at the time she executed her Advance Directive, Ward was competent to do so. 3 This is the second guardianship proceeding involving Ward, the first proceeding was brought by Daughter in December 2011. In the 2011 proceeding, Ward contested the appointment of a guardian, and the proceeding was eventually dismissed on September 14, 2013. 4 Sister was named attorney in fact for Ward in Ward's Durable Power of Attorney for Healthcare and in Ward's Durable Power of Attorney for Property, both executed in 2013. 5 Under the Oklahoma Guardianship and Conservatorship Act, a guardian ad litem is appointed to be an advocate "on behalf of the vulnerable adult and act as an officer of the court to investigate all matters concerning the best interests of the vulnerable adult." 30 O.S. § 3-106.1(C)(4). Part of the responsibilities of a guardian ad litem include presenting the court with "written reports on the vulnerable adult's best interests that include conclusions and recommendations, and the facts upon which they are based." Id. at § 3-106.1(C)(4)(e). 6 Agreed Order Appointing General Guardian (September 22, 2021) (Exhibit A, Settlement Agreement at ¶ 6). 7 Guardian Ad Litem Report (September 8, 2021). 8 Guardian Ad Litem Report (February 1, 2022). 9 Id. 10 The Emergency Motion seeking Daughter's appointment as a successor guardian was objected to by Son, Guardian, Sister, and Ward's attorney acting on her behalf. 11 Transcript of Proceeding at 15 (April 19, 2022). 12 Transcript of Proceeding at 28-30 (April 20, 2022). 13 Transcript of Proceeding at 18 (April 19, 2022). 14 GAL read a third Guardian Ad Litem Report into the trial record stating the following: "In light of an exhaustive and intense meeting, I believe all three counsel, in our respective capacities to the ward and this Court, are confident in voicing her intent that she wishes to continue to receive artificial hydration and nutrition through her PEG tube." Id. 15 Journal Entry of Judgment, Finding 21 (May 17, 2022). 16 Id. Finding 20. 17 Sister references the Hydration and Nutrition for Incompetent Patients Act which states that "[i]t shall be presumed that every incompetent patient has directed his health care providers to provide him with hydration and nutrition to a degree that is sufficient to sustain life." 63 O.S. § 3080.3. 18 Oklahoma Uniform Jury Instruction -- OUJI-CIV 3.1 BURDEN OF PROOF- GREATER WEIGHT OF THE EVIDENCE provides, in relevant part: "considering all the evidence in the case, that the proposition on which such party has the burden of proof is more probably true than not true." 19 63 O.S. § 3101.2(A)(4). 20 63 O.S. §§ 3080.1 et seq. 21 We agree with the trial court that the presumption stated in the Hydration and Nutrition for Incompetent Patients Act does not apply to L.A.C. in this case because she was competent when she decided that artificially administered hydration and nutrition should be withheld or withdrawn from her on the basis of information sufficient to constitute informed consent; and that L.A.C., while competent, executed an advance directive instructing that her life not be extended by artificially administered hydration and nutrition. KAUGER, J., concurring specially, with whom Combs, J., joins: ¶1 The Oklahoma Advance Directive Act requires that Ward's advance directive for health care be honored during incapacity without court involvement. Because of the unavoidable length of time this appeal has taken and its potential impact on the Ward's present wishes, remand to the trial court for an evidentiary hearing consistent with this opinion is necessary. Darby, J., concurring in result: ¶1 The fact that all human life is precious, even miraculous, is not lost on me. When we as family watch life slip away for someone we love our hurt is real. And when the caretaker turns to the family to make these end-of-life decisions on behalf of our loved one it really wrenches the gut. Even so, ten out of ten still die. ¶2 Ward in this case, known to us only as L.A.C., prepared for the inevitable and while still fully competent signed the advance directive in an effort to tell the world what she wanted done, or not done, if a time would come when she could no longer competently decide for herself. ¶3 I concur in the Court's decision to vacate the Court of Appeals Opinion and affirm the trial court. I concur in the Court's decision to hold that the correct burden of proof regarding revocation of an advance directive is clear and convincing evidence. I concur in the Court's affirming the trial court's finding that Appellants did not meet the required burden of proof to show L.A.C. revoked her advance directive. ¶4 Under the heading "Living Will" the directive states: If my attending physician and another physician determine that I am no longer able to make decisions regarding my medical treatment, I direct my attending physician and other health care providers, pursuant to the Oklahoma Advance Directive Act, to follow my instructions as set forth below: L.A.C. knew what the doctors expected for her. So, she had prepared, then signed, the advance directive. Advance directives not only instruct how to care for her, they attempt to relieve the declarant's family of the burden of making those decisions. I do not fault L.A.C.'s daughter for authorizing the insertion of the PEG tube "despite the terms of Ward's advance directive." (Majority Opinion par. #2). The daughter's decision is not uncommon. I likely would have done the same. But daughter did not do what her mother directed. ¶5 L.A.C., I must conclude, signed the advance directive in hopes of preventing precisely all that has in fact happened. I commend the trial court because the judge followed the law, as he swore he would when he became a judge. I am confident the judge experienced the pressure that comes with the responsibility of deciding cases like this. It is not easy. ¶6 Attorneys, estate planners, and anyone signing an advance directive should take note of this opinion and give further directions should a situation such as this occur for a declarant and their family. ¶7 I respectfully concur in result. KANE, C.J., dissenting: ¶1 I disagree with the Majority's method of construing 63 O.S., § 3101.6 to arrive at the conclusion that the burden of proof for revoking an advance directive is clear and convincing evidence. I believe the statutory language clearly supports a preponderance of the evidence burden of proof for revoking an advance directive. The Burden of Proof for Revoking an Advance Directive Under 63 O.S., § 3101.6 is a Preponderance of the Evidence ¶2 Not all advance directives decline life-sustaining treatment. Many provide for it. The Oklahoma Advance Directive Act provides: "An individual of sound mind and eighteen (18) years of age or older may execute at any time an advance directive for health care governing the provision, withholding, or withdrawal of life-sustaining treatment." 63 O.S.2011, § 3101.4(A) (emphasis added). We are tasked with establishing the burden of proof for revoking an advance directive. Let us be cognizant that whatever burden of proof is established in this case will apply to the revocation of every advance directive--whether the advance directive expresses the patient's wishes that life-sustaining treatment be withheld or withdrawn under certain circumstances or that all life-sustaining treatment be provided under any conditions or something in between. This is a pure question of law. The Court should resist the urge to fashion a common law burden of proof based on the facts and result in this specific case.1 ¶3 Rather, I first seek the aid of the language of the statute, itself, to establish a burden of proof that effectuates the legislative intent ascertained from the plain and ordinary meaning of the statute. Title 63, § 3101.6 of the Oklahoma Advance Directive Act provides: A. An advance directive may be revoked in whole or in part at any time and in any manner by the declarant, without regard to the declarant's mental or physical condition. A revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation. B. The attending physician or other health care provider shall make the revocation a part of the declarant's medical record. 63 O.S.2011, § 3101.6 (emphasis added). The statutory language "at any time and in any manner" and "without regard to the declarant's mental or physical condition" clearly indicates the Legislature intended for it to be very easy for a patient to revoke or modify his or her advance directive. 63 O.S., § 3101.6(A). A more lenient burden of proof is consistent with the statutory language. Sister makes this argument, and the Majority Opinion dismisses it without much explanation. See Maj. Op. ¶ 26. To me, there is no need--and, in fact, it is inappropriate--to, as the Majority does, look to provisions in other Acts in other Chapters of Title 63 to determine the burden of proof for revoking an advance directive when a lesser burden of proof is so obviously contemplated in the text of 63 O.S., § 3101.6(A). ¶4 The preponderance of the evidence burden of proof is also supported by the Majority's other holding in this case--that according to the clear and unambiguous language "without regard to the declarant's mental or physical condition," an incompetent or incapacitated person retains the right to revoke her advance directive. While one must be competent to execute an advance directive, one does not need to be competent to revoke it.2 Answer me this: Would an incompetent or incapacitated patient ever be able to revoke an advance directive by clear and convincing evidence? Would an incompetent or incapacitated patient's revocation ever be free from serious doubt? Not likely. It is nearly impossible to get clear and convincing evidence of a revocation, which is free from serious doubt, from an incompetent or incapacitated person. Requiring clear and convincing evidence would make an incapacitated or incompetent patient's advance directive practically irrevocable and render the language "without regard to the declarant's mental or physical condition" meaningless. Because competency is not required to revoke, it only makes sense that a lower burden of proof is required. ¶5 Finally, contrary to the Majority's assertions, a lower burden of proof for revoking an advance directive is actually consistent with the purpose of the Oklahoma Advance Directive Act, which is to recognize the statutory right of individuals to control their own medical care. See 63 O.S.2011, § 3101.2(A)(1). Autonomy over one's medical care includes the right to change one's mind about life-sustaining treatment. This statutory purpose is also evidenced by the language used in 63 O.S.2011, § 3101.8(A): "A patient may make decisions regarding life-sustaining treatment as long as the patient is able to do so." The language used in 63 O.S., § 3101.6 and § 3101.8, combined with the Act's purpose to give patient's control over their care, supports the more lenient preponderance of the evidence burden of proof for revoking an advance directive. ¶6 As I stated earlier, revocation is revocation without regard to the directives contained therein. But, with the use of such lenient language, I can't help but think the revocation provision was drafted with a particular scenario in mind: a person executes an advance directive that says not to extend his life with life-sustaining treatment but, when actually faced with death, changes his mind and wishes to prolong his life. The lenient language in the revocation provision is intended to safeguard that person's right to control his own medical care, including the right to change his mind and fight for or sustain his own life--even if that person is incapacitated or incompetent. Why trust an incapacitated or incompetent person's decision to revoke the advance directive declining life-sustaining treatment that he executed when he was of sound mind? Because death is irreparable. As noted by the Court of Civil Appeals, the decision to terminate life-sustaining treatment is obviously not capable of reconsideration once death has occurred. ¶7 In the present case, the distinction between the clear and convincing and preponderance of the evidence burdens of proof may seem irrelevant, as the trial court concluded that the evidence was insufficient to continue administering life-sustaining treatment under either burden of proof, but in future cases, the distinction will be crucial. In a scenario where the finder of fact concludes that by a preponderance of the evidence, i.e. that it is most likely, that a patient has changed his mind and now wishes (contrary to his advance directive) to sustain his life, it would be constitutionally abhorrent for this Court to disregard the patient's established wishes and allow life-sustaining measures to terminate upon a finding that the vulnerable citizen probably wanted to live, but was unable to meet the heightened standard, set by this Court, to sustain his own life. ¶8 For these reasons, I would hold that the burden of proof for revoking an advance directive pursuant to 63 O.S., § 3101.6 is a preponderance of the evidence. The Majority's Misplaced Reliance on 63 O.S., § 3080.4(A)(2) of the Hydration and Nutrition for Incompetent Patients Act and 63 O.S., § 3131.4(A)(4) of the Oklahoma Do-Not-Resuscitate Act ¶9 The Majority's analysis relies heavily on the statutorily-defined clear and convincing evidence burden of proof articulated in 63 O.S.2011, § 3080.4(A)(2) of the Hydration and Nutrition for Incompetent Patients Act and 63 O.S.2011, § 3131.4(A)(4) of the Oklahoma Do-Not-Resuscitate Act. See Maj. Op. ¶¶ 23-25. Its reliance on these two provisions is misplaced. This becomes clear when 63 O.S., § 3080.4(A)(2) and 63 O.S., § 3131.4(A)(4) are examined in context. These provisions set forth the burden of proof for rebutting the presumption in favor of life-sustaining treatment when there is no advance directive. They have nothing to do with revoking an advance directive. The Presumption for Life-Sustaining Treatment and Rebutting the Presumption ¶10 When a court considers the proposed termination of life-sustaining treatment, including the withdrawal of artificially administered nutrition and hydration, it must begin with the presumption that the patient would choose to defend his or her own life. The Hydration and Nutrition for Incompetent Patients Act provides: "It shall be presumed that every incompetent patient has directed his health care providers to provide him with hydration and nutrition to a degree that is sufficient to sustain life." 63 O.S.2011, § 3080.3. The Oklahoma Do-Not-Resuscitate Act provides: "Every person shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest . . . ." 63 O.S.2011, § 3131.4(A). These Acts clearly state there is a presumption in favor of life-sustaining treatment. ¶11 This presumption may, however, be rebutted. The Legislature has set forth thirteen ways the presumption may be rebutted.3 Stated another way, the Legislature has set forth thirteen exceptions to the obligation to provide life-sustaining treatment to a patient. One way to rebut this presumption is with an advance directive specifically declining life-sustaining treatment. See 63 O.S., § 3080.4(A)(3)-(5); 63 O.S., § 3131.4(A)(6). ¶12 The two provisions relied upon by the Majority--63 O.S., § 3080.4(A)(2) and 63 O.S., § 3131.4(A)(4)--provide two other ways to overcome the presumption for life-sustaining treatment. Title 63, § 3080.4(A)(2) of the Hydration and Nutrition for Incompetent Patients Act provides: A. The presumption pursuant to Section 3080.3 of this title shall not apply if: . . . 2. A court finds by clear and convincing evidence that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him . . . . 63 O.S., § 3080.4(A) (emphasis added). Title 63, § 3131.4(A)(4) of the Oklahoma Do-Not-Resuscitate Act provides: A. Every person shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless one or more of the following conditions, of which the health care provider has actual knowledge, apply: . . . 4. An attending physician of an incapacitated person without a representative knows by clear and convincing evidence that the incapacitated person, when competent, decided on the basis of information sufficient to constitute informed consent that the person would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. Clear and convincing evidence for this purpose shall include oral, written, or other acts of communication between the patient, when competent, and family members, health care providers, or others close to the patient with knowledge of the patient's personal desires . . . . 63 O.S., § 3131.4(A) (emphasis added). ¶13 Borrowing the clear and convincing burden of proof from these provisions located in other Acts is inappropriate for a couple of reasons. First, these provisions set forth the burden of proof for rebutting the presumption in favor of life-sustaining treatment when there is no advance directive. They have nothing to do with revoking an advance directive. An advance directive is just one of several ways to rebut the presumption for life-sustaining treatment. We have that here.4 What we care about is the burden of proof for revoking such an advance directive. These provisions don't tell us that. They detail other ways the presumption may be rebutted if there isn't an advance directive. ¶14 Second, the heightened clear and convincing evidence burden of proof in these statutes is paired with a competency requirement. For the presumption to be rebutted by clear and convincing evidence, the patient must be competent at the time she expressed her wishes that artificially administered hydration and nutrition be withheld or withdrawn and must be competent at the time she expressed her wishes to not be resuscitated. See 63 O.S., § 3080.4(A)(2); 63 O.S., § 3131.4(A)(4). When clear and convincing evidence is required, so is competency. The Majority held that the revocation statute does not require competency. In this regard, the two provisions relied on by the Majority actually support a more lenient burden of proof for revocation, because competency is not required to revoke an advance directive. ¶15 For these reasons, I am not persuaded that the clear and convincing burden of proof found in these irrelevant provisions should inform our determination of a common law burden of proof for the revocation of an advance directive. ¶16 My conclusion that the burden of proof for revoking an advance directive is a preponderance of the evidence does not offend the clear and convincing evidence burden of proof for terminating life-sustaining treatment as suggested by the Majority. The United States Supreme Court and this Court have recognized that clear and convincing evidence is required to terminate life-sustaining treatment, not to prolong life. See Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 282-84 (1990); In re Baby F, 2015 OK 24, ¶ 24, 348 P.3d 1080, 1088-89. While only a preponderance of the evidence is needed to revoke the advance directive, clear and convincing evidence continues to be needed to rebut the presumption that a patient wants to live. Revoking a directive that declines life-sustaining treatment results in prolonging life. Revoking a directive that provides for life-sustaining treatment does not automatically decline life-sustaining treatment. We simply return to the presumptive state without an advance directive. Life-sustaining treatment continues until it is rebutted pursuant to 63 O.S., § 3080.4(A)(1)-(7) or 63 O.S., § 3131.4(A)(1)-(6). ¶17 I respectfully dissent. FOOTNOTES 1 The Court of Civil Appeals also made this mistake. While I agree with the COCA's conclusion that the proper burden of proof is a preponderance of the evidence, I disagree with the COCA's reasoning. Rather than answer the pure question of law, the COCA looked to the circumstances in this case and reasoned that, because revocation would result in the preservation of the Ward's life, a more lenient burden of proof for revoking an advance directive applied. This seems to suggest that if the advance directive had expressed patient's wishes to receive all life-sustaining treatment under any conditions, the heightened clear and convincing evidence burden of proof would have applied to revocation. The law does not support establishing different common law burdens of proof based on the terms of the advance directive. The burden of proof for revoking an advance directive under 63 O.S., § 3101.6 is the same, regardless of the directives contained therein. For reasons discussed later in this opinion, a more lenient burden of proof for revoking an advance directive does not, in any way, alter the firmly established clear and convincing evidence burden of proof for declining life-sustaining treatment. 2 An advance directive can only be executed by a competent adult. The advance directive governs in the event the once competent adult becomes incapacitated or incompetent and is no longer able to make informed decisions about her health care. An advance directive governs only when the patient is incapacitated or incompetent. The statutory language in 63 O.S., § 3101.6(A) is crystal clear: an incapacitated or incompetent person may revoke her advance directive (which instructs what to do if she becomes incapacitated or incompetent). As nonsensical as this sounds, I accept the clear and unambiguous meaning of the statute. 3 The Hydration and Nutrition for Incompetent Patients Act provides: A. The presumption pursuant to Section 3080.3 of this title shall not apply if: 1. The attending physician of the incompetent patient knows that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him; 2. A court finds by clear and convincing evidence that the patient, when competent, decided on the basis of information sufficient to constitute informed consent that artificially administered hydration or artificially administered nutrition should be withheld or withdrawn from him; 3. An advance directive has been executed pursuant to the Oklahoma Natural Death Act specifically authorizing the withholding or withdrawal of nutrition and/or hydration; 4. An advance directive has been executed pursuant to the Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act specifically authorizing the withholding or withdrawal of nutrition and/or hydration; 5. An advance directive for health care has been executed pursuant to the Oklahoma Advance Directive Act specifically authorizing the withholding or withdrawal of nutrition and/or hydration; 6. In the reasonable medical judgment of the incompetent patient's attending physician and a second consulting physician, artificially administered hydration or artificially administered nutrition will itself cause severe, intractable, and long-lasting pain to the incompetent patient or such nutrition or hydration is not medically possible; or 7. In the reasonable medical judgment of the incompetent patient's attending physician and a second consulting physician: a. the incompetent patient is chronically and irreversibly incompetent, b. the incompetent patient is in the final stage of a terminal illness or injury, and c. the death of the incompetent patient is imminent. 63 O.S.2011, § 3080.4(A). The Oklahoma Do-Not-Resuscitate Act provides: A. Every person shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless one or more of the following conditions, of which the health care provider has actual knowledge, apply: 1. The person has notified such person's attending physician that such person does not consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest and that notification has been entered in the patient's medical records; 2. The parent or guardian of a minor child, after consultation with the minor child's attending physician, has notified the minor child's attending physician that the parent or guardian does not consent to the administration of cardiopulmonary resuscitation in the event of the minor child's cardiac or respiratory arrest, and that the minor child, if capable of doing so and possessing sufficient understanding and appreciation of the nature and consequences of the treatment decision despite the minor child's chronological age, has not objected to this decision of the parent or guardian, and such notification has been entered in the minor child's medical records; provided, medically indicated treatment may not be withheld from a disabled infant with life-threatening conditions to the extent that such medically indicated treatment is required by federal law or regulations as a condition for the receipt of federally funded grants to this state for child abuse and neglect prevention and treatment programs; 3. An incapacitated person's representative has notified the incapacitated person's attending physician that the representative, based on the known wishes of the incapacitated person, does not consent to the administration of cardiopulmonary resuscitation in the event of the incapacitated person's cardiac or respiratory arrest and that notification has been entered in the patient's medical records; 4. An attending physician of an incapacitated person without a representative knows by clear and convincing evidence that the incapacitated person, when competent, decided on the basis of information sufficient to constitute informed consent that the person would not have consented to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. Clear and convincing evidence for this purpose shall include oral, written, or other acts of communication between the patient, when competent, and family members, health care providers, or others close to the patient with knowledge of the patient's personal desires; 5. A do-not-resuscitate consent form in accordance with the provisions of the Oklahoma Do-Not-Resuscitate Act has been executed for that person; or 6. An executed advance directive for health care, or other document recognized by the Oklahoma Rights of the Terminally III or Persistently Unconscious Act, directing that life-sustaining treatment not be performed in the event of cardiac or respiratory arrest, is in effect for that person, pursuant to the provisions of paragraph 1 of Section 3101.3 or Section 3101.14 of this title. 63 O.S.2011, § 3131.4(A). 4 Whether the Ward rebutted the presumption for life-sustaining treatment is not at issue in this case. That was accomplished by her 2013 advance directive.

720c22d6-52ed-4dd0-ac89-a5a8b9b6ab88

SCHIEWE v. CESSNA AIRCRAFT CO

oklahoma

Oklahoma Supreme Court

SCHIEWE v. CESSNA AIRCRAFT CO2024 OK 19Case Number: 121,203Decided: 03/12/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Jade P. Schiewe and Zachary Pfaff, Plaintiffs/Appellants, v. Cessna Aircraft Company, Defendant/Appellee, Spartan Aviation Industries, Inc., Kelly Aerospace Turbine Rotables, Inc., and Eaton Corporation, Defendants. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY HONORABLE DAMAN H. CANTRELL, DISTRICT JUDGE ¶0 This case arises out of an airplane crash that occurred in September 2010. Plaintiffs, Jade P. Schiewe and Zachary Pfaff (Pilots) filed suit in Tulsa County District Court against Defendant, Cessna Aircraft Company, for negligently failing to revise its service manual. Cessna filed a motion for summary judgment asserting that Pilots' claims were barred by the General Aviation Revitalization Act of 1994 (GARA). After years of litigation, the Tulsa County District Court granted summary judgment in favor of Cessna. We retained Pilots' appeal to determine whether GARA's 18-year statute of repose applies. AFFIRMED. Tadd Bogan, Patrick G. Colvin, and C. Michael Copeland, Jones, Gotcher & Bogan, P.C., Tulsa, Oklahoma, for Appellants Jade P. Schiewe and Zachary Pfaff. James K. Secrest, II, James Secrest, III, and Edward J. Main, Secrest, Hill, Butler & Secrest, Tulsa, Oklahoma, and Michael G. Jones, Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., Wichita, Kansas, for Appellee Cessna Aircraft Company, subsequently merged into Textron Aviation Inc. OPINION DARBY, J., ¶1 In August 2011, Plaintiffs, Jade P. Schiewe and Zachary Pfaff (Pilots), filed a negligence lawsuit against Cessna Aircraft in Tulsa County District Court. The lawsuit was based on an airplane crash that occurred on September 28, 2010, when Pilots were flying a Cessna 172RG, in Tulsa, Oklahoma. Pilots' claim is based on Cessna's alleged negligent failure to revise the service manual for the Cessna 172RG to include a new part and installation instructions for said part. The underlying question before this Court is whether a claim for negligent failure to revise a service manual is subject to the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, Aug. 17, 1994, 108 Stat. 1552, 49 U.S.C. 40101 note. We answer in the affirmative. I. STANDARD OF REVIEW ¶2 Summary judgment settles only questions of law, therefore it is reviewed de novo. Fraternal Order of Police v. City of Norman, 2021 OK 20, ¶ 2, 489 P.3d 20, 22. Statutory interpretation is also a question of law subject to de novo review. Thurston v. State Farm Mut. Auto. Ins. Co., 2020 OK 105, ¶ 2, 478 P.3d 415, 417. We will affirm summary judgment only if we determine from the pleadings and evidence before it, that there is no genuine dispute as to any material fact and one of the parties is entitled to judgment as a matter of law. Fraternal Order of Police, 2021 OK 20, ¶ 2, 489 P.3d, at 22; see also 12 O.S.2011, § 2056(C). II. BACKGROUND & PROCEDURAL HISTORY ¶3 On September 28, 2010, Pilots were flying Cessna 172RG, Serial Number 172RG0258, Registration Number N5145U (the Aircraft), in Tulsa, Oklahoma. When Schiewe lowered the plane's landing gear in preparation for landing, flames erupted from under the instrument panel. The fire was allegedly caused by the terminal lug on the plane's hydraulic pump power pack for the landing gear shorting and arcing onto the case of the power pack. The fire quickly spread to the floor of the aircraft and filled the cabin with smoke, causing Pilots to crash land in a nearby field. ¶4 The Federal Aviation Administration approved the Type Certificate for Cessna Aircraft Model 172RG on June 1, 1979. Cessna manufactured the Aircraft in January 1980. On February 1, 1980, Cessna sold the Aircraft to its first purchaser. The Aircraft was certified as airworthy on February 6, 1980. ¶5 Cessna later fabricated a "cap" that fit over the terminal lug of the hydraulic pump power pack. Pilots alleged the part was designed to prevent accidents like the one in this case. Cessna's corporate representative testified that prior to this accident, Cessna primarily thought of the cap as a way to keep debris out of the connection. The 1980 thru 1984 Cessna parts catalog, dated June 30, 1983, listed the cap as "cover" and showed it in the parts diagram. The cap is also shown in the Model 172RG Series Parts Catalog (1980 Thru 1985), dated March 18, 1985. But Cessna never revised the service manual to provide instructions or visuals for installation of the cap. ¶6 Cessna has not overhauled, serviced, or otherwise provided maintenance work for the hydraulic power pack on the Aircraft subsequent to delivery to its first purchaser. Further, Cessna has not supplied any new component, system, subassembly, or other part for the hydraulic power pack on the Aircraft subsequent to delivery to its first purchaser. ¶7 In August 2011, Pilots filed a petition against Cessna Aircraft in Tulsa County District Court. Pilots' claim is based upon Cessna's alleged negligent failure to revise its service manual to include a specific instruction for the installation and proper positioning of a cap on the terminal of the Hydraulic Power Pack for Model 172RG Aircraft. On October 18, 2012, Cessna filed a motion for summary judgment, claiming that Pilots' claims against Cessna were prohibited by the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, Aug. 17, 1994, 108 Stat. 1552, 49 U.S.C. 40101 note. Cessna argued that GARA's 18-year statute of repose barred Pilots' claims against Cessna because the Aircraft was manufactured in January 1980, Cessna sold it on February 1, 1980, it was certified as airworthy on February 6, 1980, and Cessna had not serviced or provided any maintenance for the Aircraft subsequent to the delivery of the Aircraft on February 1, 1980--all more than thirty years prior to the accident. ¶8 For the next ten and a half years, the parties continued to argue the question of summary judgment based on GARA; the trial court held an evidentiary hearing to answer material issues of fact regarding dates, and Cessna and Pilots took depositions from relevant parties.1 Through that process, it was revealed that the procedures and illustrations for the removal and installation of a Hydraulic Power Pack remained unchanged in the Service Manual through at least September 28, 2010, although there were various other unrelated edits to the Service Manual. The mechanic who installed the current power pack assembly testified that he knew that the Cessna Parts Catalog showed a cover for the post on the side of the power pack, but he did not install a cover because the cover was not mentioned in the Service Manual. After nine-and-a-half years, on November 10, 2022, Cessna filed a motion to reconsider the GARA issues again, citing to this Court's recent rule changes allowing citation to unpublished Court of Civil Appeals' opinions and asserting the relevancy of the recent unpublished Court of Civil Appeals' opinion, Lunn v. Continental Motors, Inc.(Lunn II), No. 119,394 (COCA Div. III Mar. 4, 2022)(unpublished), cert. denied (Okla. Sup. Ct. Dec. 19, 2022). After renewed briefing on the issues, on March 8, 2023, the district court granted summary judgment in favor of Cessna based on GARA's statute of repose. ¶9 At the outset, the district court noted this Court's rule change allowing district courts to consider unpublished COCA opinions as persuasive authority. The district court found that the parties agreed that the maintenance manual is not a part and therefore ruled that revision to the manual does not "re-start the GARA clock under GARA's 'rolling provision.'" But the court found that an item does not need to be a "part" for the GARA statute of repose to apply, rather that it applies to prohibit actions against manufacturers acting in capacity as manufacturer. The court reviewed Lunn I, Lunn v. Hawker Beechcraft Corp., 2018 OK CIV APP 12, 417 P.3d 1206 (decided Sept. 29, 2017; mandate issued Mar. 1, 2018)(Lunn I), and Lunn II, Lunn v. Continental Motors, Inc. (Lunn II), No. 119,394 (COCA Div. III Mar. 4, 2022)(unpublished), cert. denied (Okla. Sup. Ct. Dec. 19, 2022); the district court noted that Lunn II relied on the plain language of GARA and cited to GARA's language that "no civil action" can be maintained against the company "in its capacity as a manufacturer." The district court considered a federal case from Delaware wherein the court held that a manufacturer is acting in its capacity as manufacturer when it publishes maintenance manuals because federal regulations require the manufacturer to publish them. The district court ultimately held that GARA operates to bar the claims against Cessna based on maintenance manuals. ¶10 On appeal, Pilots assert that the district court erred in granting the motion for summary judgment, and by extending GARA protections to a claim for negligence with respect to a service manual. Pilots claim that the district court's ruling creates an anomaly in aircraft manufacturer liability, where a manufacturer would be liable for negligence in design or manufacture of a new part for a 20-year-old plane but would not be liable for negligent revision of the service manual with erroneous instructions for the same new part. In their motion to retain, Pilots claim that GARA only absolves manufacturers of liability arising from a part or an aircraft, which the parties agreed the maintenance manual is not. Pilots requested the Court retain the appeal to answer whether GARA's 18-year statute of repose for aircraft manufacturers applies to claims alleging the manufacturer's negligence in maintaining the maintenance or service manual. The Court granted Pilots' motion to retain. III. ANALYSIS ¶11 The General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, Aug. 17, 1994, 108 Stat. 1552, 49 U.S.C. 40101 note,2 is a federal statute of repose barring civil liability for manufacturers of aircrafts and aircraft parts starting eighteen years after the date of delivery to the first purchaser or first seller. GARA, § 2(a)(1)--(2). GARA states "the term 'limitation period' means 18 years with respect to general aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft." GARA, § 3(3). ¶12 In order to answer whether the statute of repose in GARA applies to the facts of this case, we must determine whether 1) a service manual is created in a manufacturer's capacity as manufacturer, 2) a service manual is included within the limitation period provided in GARA, and 3) issuing or failing to issue a new service manual re-starts the GARA tolling period. A. Capacity as Manufacturer ¶13 Cessna argued, and the district court agreed, that the GARA provision in section 2(a) prohibits bringing certain civil actions for damages against the manufacturer of an aircraft in its capacity as a manufacturer. But Pilots argue that the service manual is not covered under GARA's protections for manufacturers in their capacity as a manufacturer. The legislative report explaining the intent behind GARA stated: Section 2(a) sets forth the legislation's basic limitation on civil actions for damages brought against manufacturers of general aviation aircraft and their component parts. This limitation applies with respect to civil actions arising out of "accidents," and it is limited to civil actions brought against a manufacturer "in its capacity as a manufacturer." The latter limitation is intended to insure that parties who happen to be manufacturers of an aircraft or a component part are not immunized from liability they may be subject to in some other capacity. For example, in the event a party who happened to be a manufacturer committed some negligent act as a mechanic of an aircraft or as a pilot, and such act was a proximate cause of an accident, the victims would not be barred from bringing a civil suit for damages against that party in its capacity as a mechanic. Similarly, if a manufacturer had built a plane that was in use for a period beyond the applicable statute of repose, and had also just built a new component part that was installed in the aircraft within the statute of repose period, in the event of an accident, the statute of repose would bar a suit against the manufacturer relating to the production of the plane, but not the component part. H.R. REP. 103-525(II)(Section-by-Section Analysis) (June 24, 1994). This clarifies that the limitation in GARA's statute of repose, "in its capacity as a manufacturer," is intended to insure manufacturers are not immune from liability from discretionary roles they choose to adopt. But Cessna's creation and maintenance of the service manual is not a discretionary role that Cessna has chosen to also take on in another capacity, like being a mechanic or pilot. In fact, section 23.1529 of the Code of Federal Regulations mandates that Cessna had a duty to create and maintain the service manual. Section 23.1529 provides: The applicant must prepare Instructions for Continued Airworthiness, in accordance with appendix A of this part, that are acceptable to the Administrator. The instructions may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first airplane or issuance of a standard certificate of airworthiness, whichever occurs later. 14 C.F.R. § 23.1529. The mechanic who worked on the aircraft testified that Cessna had a regulatory duty under federal law to maintain and revise maintenance manuals for its aircraft in its capacity as manufacturer. He explained that the 'applicant' subject to this regulation is the "type certificate holder" of the aircraft, in this case--Cessna. The appendix clarifies that the continued airworthiness instructions should be prepared as manuals, including maintenance or service manuals -- exactly what is at issue here.3 Numerous federal regulations require manufacturers of aircraft to follow an extensive certification process which requires them to create instructions to assist in continuing maintenance of the aircraft. See 14 C.F.R. §§ 21.31, 21.50, 23.1529, 25.1529, 25.1729, 26.1, 26.33, 27.1529, 29.1529, 31.82, 33.4, 35.4, 43.10. Thus the district court is correct, the creation of a service manual for the Cessna 172RG is an action taken in Cessna's capacity as manufacturer of the Cessna 172RG. Our interpretation here is consistent with that of numerous state and federal courts. See Crouch v. Honeywell Int'l, Inc., 720 F.3d 333, 341 (6th Cir. 2013) (applying GARA and holding that manufacturer's duty to publish and update maintenance manuals is within its capacity as manufacturer); see also Estate of Grochowske v. Romey, 2012 WI App 41, ¶ 20, 340 Wis. 2d 611, 629, 813 N.W.2d 687, 697 (applying GARA and holding manufacturer fulfilling legal obligation to provide maintenance manual was acting in its capacity as manufacturer); see also Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543, 550--52 (Iowa 2002) (applying GARA and holding manufacturer published maintenance manual in its capacity as a manufacturer, stating "[a]ny other interpretation would subject manufacturers to liability on failure-to-warn claims without regard to the statute of repose, thereby thwarting Congress's objective in enacting the statute."); see also Burroughs v. Precision Airmotive Corp., 78 Cal. App. 4th 681, 694--95, 93 Cal. Rptr. 2d 124, 134 (2000) (finding manufacturer acting in capacity in creating mandatory service bulletins and that GARA barred any related claims, including a continuing duty to warn). Because Cessna is required to create the service manual as a part of the aircraft being certified, the service manual is created by Cessna in its capacity as a manufacturer. B. Coverage Under "Limitation Period" ¶14 Pilots further argue that GARA does not apply because a maintenance or service manual does not fall within the terms used to define what the limitation period applies to. Pilots note the definition of "limitation period" states it "means 18 years with respect to general aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft . . . ." GARA, § 3(3) (emphasis added). Pilots assert that because the service manual does not explicitly fit any of the limitation period descriptions--i.e., it is not an aircraft, it is not an aircraft component, it is not an aircraft system, it is not an aircraft subassembly, and it is not an aircraft part--it is not covered by the statute of repose. Pilots assert that Cessna negligently failed to update the service manual to include installation instructions or visuals of the new part when it was added to the parts manual, thus their claim is not barred by GARA. ¶15 The applicable limitation period for the aircraft in question originally began over 30 years before the accident in this case, on February 1, 1980. Any claims related to negligence or products liability of the design of the aircraft or its original parts were prohibited under GARA on February 1, 1998, 18 years after the delivery of the aircraft to its first purchaser. The aircraft manufacturer added the new part within a few years of the initial delivery and added the new part to the parts catalog on June 30, 1983. Any civil action specifically related to the new part was prohibited after June 30, 2001, at the latest.4 Cessna did not add the new part to the service manual with incorrect installation instructions or diagrams which were the proximate cause of an accident. Rather, Cessna failed to ever add the new part to the service manual at all. Cessna's failure to edit the service manual to include the new part essentially erased the new part, leaving the service manual exactly the same as it was prior to the creation of the new part. ¶16 There is little case law specifically addressing whether a service manual is a part within the meaning of GARA. In Alter, the court concluded that "the suit for a failure of the manuals to correct a design flaw is precluded by the statute of repose that bars a suit for the design flaw." Alter v. Bell Helicopter Textron, Inc., 944 F. Supp. 531, 540 (S.D. Tex. 1996). In Robinson, plaintiffs sought to avoid the GARA statute of repose by alleging a recent maintenance manual failed to adequately address problems on an aircraft that was already over 18 years old. The court quoted: To hold that [the defendant] should be liable because its manuals issued within the period of repose did not provide an adequate means of correcting the design flaw of the critical component, would be to circumvent the statute of repose by providing a back door to sue for the design flaw-ostensibly not for the design flaw itself; but for the failure of the manuals to adequately correct the flaw. The result would be the evisceration of the statute of repose. Robinson v. Hartzell Propeller Inc., 326 F. Supp. 2d 631, 661 (E.D. Pa. 2004); see also Burton v. Twin Commander Aircraft, LLC, 148 Wash. App. 606, 620, 221 P.3d 290, 297 (2009), rev'd, Burton v. Twin Commander Aircraft, LLC, 171 Wash. 2d 204, 254 P.3d 778 (2011). ¶17 Pilots' interpretation of GARA would create a continuing duty on the part of aircraft manufacturers to continually check and revise service manuals for older aircraft to ensure they did not fail to include information, long after the duty based on the aircraft or any new part was extinguished by the statute of repose. But Pilots are also correct that interpreting GARA such that the service manual is not a "part" would potentially allow manufacturer's to avoid liability if they were to add or remove information that was the proximate cause of an accident. While the maintenance manual itself is not an aircraft, the creation of the maintenance manual is required by the aircraft manufacturer as part of the application process in order to obtain a type certification for the aircraft, and must be completed at the latest prior to delivery of the first airplane or issuance of a standard certificate of airworthiness, whichever occurs later-- thus the service manual is created by Cessna in its capacity as aircraft manufacturer as a part or component of the aircraft. See 14 C.F.R. 23.1529. ¶18 Further, the service manual is contemplated within GARA as well, although it is not explicitly listed. In section 2(b), GARA provides specific exceptions where it does not apply, which include if "the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented[,] . . . concealed[,] or withheld from the [FAA] required information that is material and relevant to the performance or the maintenance or operation of such aircraft . . . ." While Pilots have not made any claims that Cessna knowingly misrepresented, concealed, or withheld information from the FAA in this case, we believe this language within GARA (that would exempt a manufacturer from the immunity that it is granted under GARA for misrepresenting, concealing, or withholding information regarding the airworthiness or maintenance of the plane) would suggest that Congress considered the service manual--which the manufacturer is required to create under federal regulations --a part or component of the aircraft under GARA's limitation period. ¶19 To determine that maintenance or service manuals are not a part covered by GARA's limitation period would make interpretation of that portion of GARA providing an exclusion from immunity due to the manufacturer's misrepresenting, concealing, or withholding information regarding the maintenance of the aircraft absurd, something we must avoid. See Ledbetter v. Okla. Alcoholic Beverage Laws Enf't Comm'n, 1988 OK 117, ¶ 7, 764 P.2d 172, 179 ("Statutory construction that would lead to an absurdity must be avoided and a rational construction should be given to a statute if the language fairly permits."). "In ascertaining the Legislature's intent, a court looks 'to each part of an act, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural and absurd consequences of any particular interpretation.'" Okla. Ass'n of Broadcasters, Inc. v. City of Norman, Norman Police Dep't, 2016 OK 119, ¶ 16, 390 P.3d 689, 694 (quoting Blevins v. W.A. Graham Co., 1919 OK 147, ¶ 8, 72 Okla. 308, 182 P. 247, 248). Looking at each part of GARA, we find a service manual is included within the limitation period provided in GARA. C. GARA Rolling Provision ¶20 Finally, we must answer the question of whether issuing or failing to issue a new service manual re-starts the GARA tolling period. To this point, we find two 9th Circuit cases helpful, Caldwell and Lyons. In Caldwell, the plaintiffs contended, "under theories of strict liability and negligence, that the revised manual itself is the defective product that caused the accident." Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1157 (9th Cir. 2000). The Caldwell court found: A revision to the manual does not implicate GARA's rolling provision, however, unless the revised part "is alleged to have caused [the] death, injury, or damage." GARA § 2(a)(2). Just as the installation of a new rotor blade does not start the 18--year period of repose anew for purposes of an action for damages due to a faulty fuel system, a revision to any part of the manual except that which describes the fuel system would be irrelevant here. Furthermore, mere cosmetic changes (like changing the manual's typeface) do not revive the statute of repose. In sum, if Defendant substantively altered, or deleted, a warning about the fuel system from the manual within the last 18 years, and it is alleged that the revision or omission is the proximate cause of the accident, then GARA does not bar the action. Caldwell, 230 F.3d, at 1158. In this case, Cessna failed to revise the service manual to include the new cap over 18 years ago, when it fabricated the cap. In Lyon, the 9th Circuit clarified the holding from Caldwell. The Lyon plaintiffs were attempting "to argue that a failure to warn about a newly perceived problem also amounts to something like replacement of a component part because it breaches an alleged continuing duty to upgrade and update." Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088 (9th Cir. 2001), as amended (July 9, 2001). The court stated We do not agree. Were that so, GARA would have little value to manufacturers because the plaintiff could always argue that an 18--year period commenced if the manufacturer did nothing at all, while simultaneously arguing that if the manufacturer did do something that, too, would start a new 18--year period running. That is not the law, and in Caldwell we alluded to the fact that a revision to a manual was quite different from a failure to warn. [Caldwell, 230 F.3d,] at 1157. What we alluded to there, we reify here: a failure to warn is decidedly not the same as replacing a component part with a new one. It does not allow the Survivors to bypass the GARA bar. Lyon, 252 F.3d, at 1088 (emphasis added). ¶21 Pilots' allegations in this case are similar to those in Lyon, essentially they claim that Cessna's alleged negligence in failing to update the service manual to include the new part was the cause of their injury and thus they are outside GARA. We disagree. More than 18 years prior to the crash Cessna failed to add the new part to the service manual at all. The time period for the statute of repose for failing to include the installation instructions for the new part in the service manual ran with the part itself. Therefore, the statute of repose prohibited claims after June 2001. IV. CONCLUSION ¶22 We find that a claim for negligent failure to revise a service manual is subject to GARA. We hold that Cessna created the Cessna 172RG service manual in its capacity as a manufacturer, the service manual is included within the limitation period provided in GARA, and Cessna did not add or omit anything to the service manual which was a proximate cause of the accident in order to re-start the GARA statute of repose. The district court's order granting summary judgment is affirmed. AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 Pilots asserted that the hydraulic power pack assembly had been replaced in 2006, thus re-starting the statute of repose. See Pls.' Resp. to Mot. for Summ. J., Nov. 7, 2012. And Pilots contended that GARA does not apply to claims based upon maintenance manuals. Id. Cessna asserted that Cessna did not manufacture a Hydraulic Power Pack subsequent to 1988, twenty-two years prior to the underlying accident, thus placing it beyond the time allowed to file suit under GARA. Supp. to Mot. for Summ. J. of Def. Cessna Aircraft Co., June 19, 2013. The district court denied Cessna's motion for summary judgment, stating "[t]here are material issues of fact regarding relevant dates that would affect pertinent defenses." Order, Sept. 9, 2013. On September 30, 2015, Cessna filed a renewed motion for summary judgment. Cessna noted that since the last denial of summary judgment, depositions were taken from Pilots, Pilots' experts, Cessna corporate representatives, and the mechanic who performed maintenance on the aircraft, resolving any factual issues. Renewed Mot. for Summ. J. of Def. Cessna Aircraft Co. & Opening Br. in Supp. 1, Sept. 30, 2015. Cessna asserted that it ceased manufacturing single-piston aircraft in 1986. The procedures and illustrations for the removal and installation of a Hydraulic Power Pack remained unchanged in the Service Manual through at least September 28, 2010, although there were various other unrelated edits to the Service Manual. Cessna asserted that in 2006, the aircraft's owner had the hydraulic power pump overhauled and replaced by another company. The mechanic who installed the Hydraulic Power Pack in 2006 testified that he knew that the Cessna Parts Catalog showed a cover for the post on the side of the power pack, but he did not install a cover because the cover was not mentioned in the Service Manual and he followed the Cessna Service Manual for the installation of the power pack assembly. On May 11, 2016, the district court denied Cessna's renewed motion for summary judgment. On September 12, 2016, Cessna requested the district court bifurcate the GARA issues for trial separate from the merits of the Pilots' claims. On February 2, 2017, the district court agreed to hold an evidentiary hearing on the separate issues related to GARA. On October 12, 2017, the district court issued a stay in this case until issuance of mandate in Lunn v. Hawker Beechcraft Corp., No. 115,149, 2018 OK CIV APP 12, 417 P.3d 1206 (decided Sept. 29, 2017; mandate issued Mar. 1, 2018) (Lunn I). The district court docket shows that the court held a status conference in November 2017 wherein all parties agreed that Lunn I was too uncertain to be precedential and the court should go ahead and rule on the GARA issue. The district court found that "the GARA defense is not available in this case as a flight manual for maintenance is not a 'part' under GARA and it is stipulated that Plaintiff's [sic] claim sounds in negligence, not in products liability." Order, Jan. 12, 2018. The court held: "therefore the remaining question, as a matter of law, the Court finds that the GARA defense is unavailable in this context." On January 26, 2018, Cessna requested the district court certify its January 18 Order for interlocutory review. On January 31, 2018, Cessna filed a motion to reconsider the January 18 Order. Cessna noted that the district court chose to not rely upon the recent Oklahoma Court of Civil Appeals case, Lunn I, 2018 OK CIV APP 12, 417 P.3d 1206 (decided Sept. 29, 2017; mandate issued Mar. 1, 2018), because at the time of the Order, a petition for certiorari regarding Lunn was pending before the Oklahoma Supreme Court. Cessna noted that this Court denied the petition for certiorari ten days after the district court issued its order and asserted that Lunn I was directly relevant to this case. Pilots argued that consideration of Lunn I was still premature because mandate had not yet issued. In reply, Cessna argued that while mandate had not yet issued, according to the Oklahoma Supreme Court Rules, there was no longer discretion to deny mandate after certiorari was denied. On March 21, 2018, the district court denied the motion to reconsider and granted Cessna's motion to certify the appeal. On April 18, 2018, the district court filed an order certifying the January 18 Order for interlocutory appeal. Cessna filed a petition for certiorari certified interlocutory order on April 20, 2018 (No. 116,946). This Court denied certiorari certified interlocutory order on May 21, 2018. On February 19, 2019, Cessna filed a motion to clarify the January 18, 2018 Order or reconsider. The district court denied that motion on April 30, 2019. On April 13, 2022, Cessna filed a Renewed Motion for Judgment as a Matter of Law Based on New GARA Case Law. Cessna argued that two new opinions regarding GARA had been decided within the past few weeks, one of which was an unpublished opinion from the Oklahoma Court of Civil Appeals. On June 16, 2022, the district court denied the motion to reconsider. 2 GENERAL AVIATION REVITALIZATION ACT OF 1994 AN ACT to amend the Federal Aviation Act of 1958 to establish time limitations on certain civil actions against aircraft manufacturers, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "General Aviation Revitalization Act of 1994". SEC. 2. TIME LIMITATIONS ON CIVIL ACTIONS AGAINST AIRCRAFT MANUFACTURERS. (a) IN GENERAL.--Except as provided in subsection (b), no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred-- (1) after the applicable limitation period beginning on-- (A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or (B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or (2) with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable limitation period beginning on the date of completion of the replacement or addition. (b) EXCEPTIONS.--Subsection (a) does not apply-- (1) if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the harm which the claimant allegedly suffered; (2) if the person for whose injury or death the claim is being made is a passenger for purposes of receiving treatment for a medical or other emergency; (3) if the person for whose injury or death the claim is being made was not aboard the aircraft at the time of the accident; or (4) to an action brought under a written warranty enforceable under law but for the operation of this Act. (c) GENERAL AVIATION AIRCRAFT DEFINED.--For the purposes of this Act, the term "general aviation aircraft" means any aircraft for which a type certificate or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations as defined under regulations in effect under the Federal Aviation Act of 1958 (49 U.S.C.App. 1301 et seq.) at the time of the accident. (d) RELATIONSHIP TO OTHER LAWS.--This section supersedes any State law to the extent that such law permits a civil action described in subsection (a) to be brought after the applicable limitation period for such civil action established by subsection (a). SEC. 3. OTHER DEFINITIONS. For purposes of this Act-- (1) the term "aircraft" has the meaning given such term in section 101(5) of the Federal Aviation Act of 1958 (49 U.S.C. 1301(5)); (2) the term "airworthiness certificate" means an airworthiness certificate issued under section 603(c) of the Federal Aviation Act of 1958 (49 U.S.C. 1423(c)) or under any predecessor Federal statute; (3) the term "limitation period" means 18 years with respect to general aviation aircraft and the components, systems, subassemblies, and other parts of such aircraft; and (4) the term "type certificate" means a type certificate issued under section 603(a) of the Federal Aviation Act of 1958 (49 U.S.C. 1423(a)) or under any predecessor Federal statute. SEC. 4. EFFECTIVE DATE; APPLICATION OF ACT. (a) EFFECTIVE DATE.--Except as provided in subsection (b), this Act shall take effect on the date of the enactment of this Act. (b) APPLICATION OF ACT.--This Act shall not apply with respect to civil actions commenced before the date of the enactment of this Act. General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, Aug. 17, 1994, 108 Stat. 1552, 49 U.S.C. 40101 note. 3 Appendix A to Part 23--Instructions for Continued Airworthiness: . . . . A23.2 Format (a) The Instructions for Continued Airworthiness must be in the form of a manual or manuals as appropriate for the quantity of data to be provided. (b) The format of the manual or manuals must provide for a practical arrangement. A23.3 Content The contents of the manual or manuals must be prepared in the English language. The Instructions for Continued Airworthiness must contain the following manuals or sections and information: (a) Airplane maintenance manual or section. (1) Introduction information that includes an explanation of the airplane's features and data to the extent necessary for maintenance or preventive maintenance. (2) A description of the airplane and its systems and installations including its engines, propellers, and appliances. (3) Basic control and operation information describing how the airplane components and systems are controlled and how they operate, including any special procedures and limitations that apply. (4) Servicing information that covers details regarding servicing points, capacities of tanks, reservoirs, types of fluids to be used, pressures applicable to the various systems, location of access panels for inspection and servicing, locations of lubrication points, lubricants to be used, equipment required for servicing, tow instructions and limitations, mooring, jacking, and leveling information. (b) Maintenance Instructions. (1) Scheduling information for each part of the airplane and its engines, auxiliary power units, propellers, accessories, instruments, and equipment that provides the recommended periods at which they should be cleaned, inspected, adjusted, tested, and lubricated, and the degree of inspection, the applicable wear tolerances, and work recommended at these periods. However, the applicant may refer to an accessory, instrument, or equipment manufacturer as the source of this information if the applicant shows that the item has an exceptionally high degree of complexity requiring specialized maintenance techniques, test equipment, or expertise. The recommended overhaul periods and necessary cross reference to the Airworthiness Limitations section of the manual must also be included. In addition, the applicant must include an inspection program that includes the frequency and extent of the inspections necessary to provide for the continued airworthiness of the airplane. (2) Troubleshooting information describing probable malfunctions, how to recognize those malfunctions, and the remedial action for those malfunctions. (3) Information describing the order and method of removing and replacing products and parts with any necessary precautions to be taken. (4) Other general procedural instructions including procedures for system testing during ground running, symmetry checks, weighing and determining the center of gravity, lifting and shoring, and storage limitations. (c) Diagrams of structural access plates and information needed to gain access for inspections when access plates are not provided. (d) Details for the application of special inspection techniques including radiographic and ultrasonic testing where such processes are specified by the applicant. (e) Information needed to apply protective treatments to the structure after inspection. (f) All data relative to structural fasteners such as identification, discard recommendations, and torque values. (g) A list of special tools needed. (h) In addition, for level 4 airplanes, the following information must be furnished-- (1) Electrical loads applicable to the various systems; (2) Methods of balancing control surfaces; (3) Identification of primary and secondary structures; and (4) Special repair methods applicable to the airplane. A23.4 Airworthiness limitations section. The Instructions for Continued Airworthiness must contain a section titled Airworthiness Limitations that is segregated and clearly distinguishable from the rest of the document. This section must set forth each mandatory replacement time, structural inspection interval, and related structural inspection procedure required for type certification. If the Instructions for Continued Airworthiness consist of multiple documents, the section required by this paragraph must be included in the principal manual. This section must contain a legible statement in a prominent location that reads "The Airworthiness Limitations section is FAA approved and specifies maintenance required under §§ 43.16 and 91.403 of Title 14 of the Code of Federal Regulations unless an alternative program has been FAA approved." 14 C.F.R. § Pt. 23, App. A, A23.2-A23.4. 4 The actual date of the creation or issuance of the new part is not in this record; this date is based on the date on the parts manual.

6b98bdc4-e519-41f0-aebf-d71c0b7b5f66

BRASSFIELD v. STATE

oklahoma

Oklahoma Supreme Court

BRASSFIELD v. STATE2024 OK 9Case Number: 119998Decided: 02/27/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ANDREW DALE BRASSFIELD, Plaintiff/Appellant, v. STATE OF OKLAHOMA, Defendant/Appellee. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Appellant sought to expunge his arrest records pursuant to 22 O.S. Supp. 2022, § 18(A). The Oklahoma State Bureau of Investigation objected, arguing that Appellant was not qualified for expungement because he had pending charges against him due to an ongoing investigation by the federal government and the Cherokee Tribe. The district court denied Appellant's petition. Appellant appealed, and the Court of Civil Appeals affirmed. We granted certiorari. We hold that an ongoing investigation into potential criminal charges is not a pending charge under Section 18(A), and Appellant qualified to seek expungement. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS. James Justin Greer, Matthew Ryan Tarvin, and William R. Tomlinson, Greer and Tarvin, PLLC, Claremore, Oklahoma, for Appellant. Shannon J. Desherow, Assistant General Counsel, Oklahoma State Bureau of Investigation, Oklahoma City, Oklahoma, for Appellee. Winchester, J. ¶1 Appellant Andrew Dale Brassfield (Brassfield) appeals the denial of his petition for expungement of his criminal records. The district court held that Brassfield was not entitled to relief because criminal charges were "pending" against Brassfield within the meaning of the Expungement of Criminal Records statute, 22 O.S. Supp. 2022, § 18(A) (hereinafter Section 18(A)). We reverse the district court's judgment, holding that the district court's decision is contrary to the plain language of Section 18(A). An ongoing investigation into potential criminal charges is not a pending charge under Section 18(A), and the prosecuting agency in this case cannot refile the criminal charge at issue against Appellant because the State of Oklahoma lacks jurisdiction. Appellant qualified to seek expungement. FACTS AND PROCEDURAL HISTORY ¶2 On December 17, 2020, Brassfield filed a petition for expungement of his criminal records in multiple felony and misdemeanor cases in Rogers County. Specifically, the relevant cases were the following: (1) Case No. CM-2018-1202, involving the possession of a controlled dangerous substance and failure to provide insurance verification; (2) Case No. CM-2002-1744, involving public intoxication; (3) Case No. CM-2004-1362, involving the transportation of an open container; (4) Case No. CM-2004-1361, involving driving under the influence and the possession of a controlled dangerous substance; (5) Case No. CM-2003-926, involving the larceny of merchandise and unlawful possession of drug paraphernalia; (6) Case No. CF-2019-288, involving a count for the possession of a controlled dangerous substance with the intent to distribute; and (7) several traffic offenses.1 In his petition, Brassfield cited various subsections of Section 18(A) that he alleged applied to the crimes involved: subsections (1), (7), (8), (9), (10), (11), and (15).2 One of the requirements of subsections (7) through (11) for a petitioner to be eligible for expungement is that the person has no felony or misdemeanor charges pending against him and the statute of limitations for refiling the charges has expired or the prosecuting agency confirms that the charges will not be refiled. ¶3 After Brassfield filed his petition for expungement but before the hearing on his petition, the Rogers County District Attorney charged Brassfield with knowingly concealing stolen property in Case No. CF-2021-65. On February 4, 2021, the Oklahoma State Bureau of Investigation (OSBI) filed an objection to Brassfield's petition for expungement, claiming Brassfield did not qualify for expungement due to the pending case (No. CF-2021-65) in Rogers County. On April 15, 2021, the district court dismissed Case No. CF-2021-65 for lack of jurisdiction under McGirt v. Oklahoma, 591 U.S. __, 140 S. Ct. 2452 (2020). Brassfield is a member of the Cherokee Tribe, and the offense was allegedly committed in Indian Country. ¶4 Brassfield filed an amended petition for expungement. However, OSBI did not withdraw its objection, arguing the conduct that gave rise to criminal Case No. CF-2021-65 was still "pending" because both the Cherokee Nation and the United States District Attorney's Office for the Northern District of Oklahoma had ongoing investigations into Brassfield. The district court denied Brassfield's petition for expungement, and Brassfield appealed. The Court of Civil Appeals (COCA) affirmed, holding the criminal charge was still "pending" as there was no disposition on the merits and investigations were still ongoing. This Court granted certiorari. STANDARD OF REVIEW ¶5 The right to expungement of criminal records is governed by statute. The issues in this appeal concern the district court's legal interpretation of Oklahoma's Expungement of Criminal Records, Section 18(A). Statutory construction poses a question of law; the correct standard of review is de novo. State ex rel. Protective Health Servs. State Dep't of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064. Under the de novo standard of review, the Court has plenary, independent, and non-deferential authority to determine whether the district court erred in its legal rulings. Id. DISCUSSION ¶6 Section 18(A) governs who qualifies to petition for the remedy of expungement. To qualify for expungement, Brassfield must meet the following conditions: 1. Brassfield was charged with one or more misdemeanor or felony crimes; 2. All the charges have been dismissed; 3. Brassfield has never been convicted of a felony; 4. No misdemeanor or felony charges are pending against Brassfield; and, 5. The statute of limitations for refiling the charge has expired or the prosecuting agency confirms that the charge will not be refiled. See 22 O.S. Supp. 2022, § 18(A). ¶7 The issues before this Court concern the fourth and fifth conditions: whether Brassfield has met the requirements that (a) he has no felony or misdemeanor charges pending against him, and (b) the statute of limitations for refiling has expired or the prosecuting agency confirmed that the charge will not be refiled. ¶8 When the Court examines a statute, our primary goal is to determine legislative intent through the "plain and ordinary meaning" of the statutory language. In re Initiative Petition No. 397, 2014 OK 23, ¶ 9, 326 P.3d 496, 501. Because the Legislature expresses its purpose by words, the plain meaning of a statute is deemed to express legislative authorial intent in the absence of any ambiguous or conflicting language. Id. Our Court has relied on dictionary definitions to provide the plain, ordinary meaning of terms. See, e.g., U.S. Fid. & Guar. Co. v. Briscoe, 1951 OK 386, ¶ 10, 239 P.2d 754, 757. ¶9 The crux of the first issue as to whether Brassfield has any pending criminal charges against him is our interpretation of the terms "charges" and "pending," and the terms must be construed together to determine the plain meaning of Section 18(A). ¶10 Black's Law Dictionary defines "charge" as a "formal accusation of a crime as a preliminary step to prosecution." Charge, Black's Law Dictionary (11th ed. 2019). It also defines "charge" as accusing a person of criminal conduct. Id. This accusation is done through a "charging instrument," which is a formal document--either an indictment or information--that sets forth an accusation or a crime. Charging Instrument, Black's Law Dictionary (11th ed. 2019). Black's Law Dictionary defines "pending" as "remaining undecided; awaiting decision." Pending, Black's Law Dictionary (11th ed. 2019). ¶11 Synthesizing these definitions, Brassfield must not have a formal misdemeanor or felony charge against him that remains to be decided. Here, the district court dismissed the charge in Case No. CF-2021-65 for lack of jurisdiction, and Brassfield had no pending charges against him. ¶12 OSBI argues that the investigation into Brassfield's conduct by other agencies amounts to a pending charge. However, the statute plainly states that criminal charges must be pending against Brassfield--not a criminal investigation. A criminal investigation into whether an individual's conduct is chargeable as a crime is not the same as the individual having a pending felony or misdemeanor charge. To hold otherwise would allow potential criminal charges to be "pending" indefinitely against an individual while other agencies investigated. We hold that Brassfield had no pending criminal charge against him within the meaning of Section 18(A). ¶13 OSBI also asserts that although the district court dismissed CF-2021-65, the statute of limitations had not expired and Brassfield failed to show that neither the federal government nor the Cherokee Tribe would prosecute the case. ¶14 However, Section 18(A) states that Brassfield must show that the charge will not be refiled by the prosecuting agency. See 22 O.S. Supp. 2022, § 18(A). This issue involves our interpretation of the term "refile." To refile means "to file (something) again"3 or "to officially record something, especially in a law court, for a second, third, etc. time."4 ¶15 In this case, the Rogers County District Attorney's Office, the prosecuting agency, cannot refile the charge because the State of Oklahoma lacks jurisdiction. The jurisdiction for the alleged offense in Case No. CF-2021-65 rests with either the federal government or the Cherokee Nation. Even if the federal government or the Cherokee Nation files a charge against Brassfield, the charge will not be "refiled." The charge will not be the same as the charge filed by the Rogers County District Attorney's Office as the charge will not involve state law. The requirement that the prosecuting agency will not refile the charge is thus satisfied, and Brassfield qualified to seek expungement under Section 18(A). CONCLUSION ¶16 Oklahoma law sets forth a clear, step-by-step framework for evaluating a request for expungement. The first step is to determine if the petitioner is one of the persons allowed to request expungement in the first instance. 22 O.S. Supp. 2022, § 18. In this case, we hold that Brassfield qualified to seek expungement. When an individual establishes that one of the Section 18(A) circumstances exists, a prima facie showing of harm is made.5 With this showing, the burden shifts to the opposing party, in this case OSBI, to prove that keeping Brassfield's records public does not harm privacy interests and would serve the ends of justice. To assess what the ends of justice require, the district court is to balance the harm to privacy or other unwarranted adverse consequences to the individual against the public interest in the records. Id. § 19(F).6 ¶17 Since the district court ruled solely on the issue of whether Brassfield was qualified to seek expungement, OSBI did not present any evidence for the district court to determine whether there was any public interest in keeping the records open. We reverse and remand with directions to the district court to balance the harm to Brassfield against the relevant evidence, if any, regarding the public interest in keeping his arrest records open. We note that for purposes of remand, the district court has great flexibility in crafting expungement orders that serve the interests of justice. 22 O.S. Supp. 2022, § 19(F). ¶18 Based upon our analysis, we reverse the district court's ruling and remand for proceedings consistent with this opinion. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS. CONCUR: Rowe, V.C.J., Kauger, Winchester, Edmondson, Combs, Gurich, and Kuehn, JJ. DISSENT: Kane, C.J., and Darby, J. (by separate writing). FOOTNOTES 1 The Court of Civil Appeals reversed the district court's ruling regarding one other criminal case and an additional count in Case No. CF-2019-288; those cases are not at issue before this Court. 2 The applicable subsections are as follows: A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . 1. The person has been acquitted; . . . 7. The person was charged with one or more misdemeanor or felony crimes, all charges have been dismissed, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled; provided, however, this category shall not apply to charges that have been dismissed following the completion of a deferred judgment or delayed sentence; 8. The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person and at least one (1) year has passed since the charge was dismissed; 9. The person was charged with a nonviolent felony offense not listed in Section 571 of Title 57 of the Oklahoma Statutes, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person and at least five (5) years have passed since the charge was dismissed; 10. The person was convicted of a misdemeanor offense, the person was sentenced to a fine of less than Five Hundred One Dollars ($501.00) without a term of imprisonment or a suspended sentence, the fine has been paid or satisfied by time served in lieu of the fine, the person has not been convicted of a felony and no felony or misdemeanor charges are pending against the person; 11. The person was convicted of a misdemeanor offense, the person was sentenced to a term of imprisonment, a suspended sentence or a fine in an amount greater than Five Hundred Dollars ($500.00), the person has not been convicted of a felony, no felony or misdemeanor charges are pending against the person and at least five (5) years have passed since the end of the last misdemeanor sentence; . . . 15. The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person's name or other identification without the person's consent or authorization. 22 O.S. Supp. 2022, § 18(A). 3 Refile, Meriam-Webster.Com Dictionary (2023), available at www.merriam-webster.com/dictionary/direct. 4 Refile, Cambridge Dictionary (2023), available at https://dictionary.cambridge.org/us/dictionary/english/refile. 5 State v. McMahon, 1998 OK CIV APP 103, ¶ 4, 959 P.2d 607, 608; see also Hoover v. State, 2001 OK CR 16, ¶ 6, 29 P.3d 591, 594 ("There is a prima facie showing of harm when a circumstance enumerated in 22 O.S. § 18 is shown to exist."). 6 Section 19(F) states: Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records. 22 O.S. Supp. 2022, § 19(F). Darby, J., dissenting: ¶1 I respectfully dissent to the majority opinion because it does not accurately state, or apply, the particular portion of title 22, Section 18(A) applicable to Mr. Brassfield's Petition for Expungement of his criminal record. I agree that Mr. Brassfield has no criminal charges pending against him. In addition to showing no pending charges, the category Mr. Brassfield hopes to fit within requires him to also show: . . . the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled; . . . . 22 O.S. Supp. 2022, § 18(A). The majority opinion rephrases this portion of the statute a couple of different ways. In paragraph 14: However, Section 18(A) states that Brassfield must show that the charge will not be refiled by the prosecuting agency. And in paragraph 15: The requirement that the prosecuting agency will not refile the charge is thus satisfied. Those statements by the majority do not correctly recite what Mr. Brassfield must show the court -- that the prosecuting agency confirms that the charge or charges will not be refiled. ¶2 I cannot agree with the conclusion that Mr. Brassfield satisfied this requirement by showing that the prosecuting agency, the Rogers County District Attorney's Office, has lost jurisdiction and is legally unable to refile the charge or charges because of the McGirt decision. The Rogers County District Attorney's Office has not confirmed that "the charge or charges will not be refiled." Therefore I would affirm the Court of Civil Appeals.

b32dad30-9a1f-423f-b2ee-101eb8b8b975

IN THE MATTER OF E.J.T.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF E.J.T.2024 OK 14Case Number: 120735Decided: 03/05/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. In the Matter of E.J.T. and C.T.T., Deprived Children, BRIANNA TATUM, Appellant, v. STATE OF OKLAHOMA, Appellee. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Mother sought certiorari review from the Court of Civil Appeals' Opinion affirming the trial court's final order terminating her parental rights following a non-jury trial. On certiorari, Mother preserved only one claim of error, whether the record supports a finding that Mother waived jury trial in a parental termination proceeding. To resolve this question we must determine the following: (1) whether a Court Minute memorializing a contemporaneous court proceeding is sufficient to support a party's oral consent to waiver of a jury trial in a parental termination proceeding; and (2) whether a party who proceeds to trial, without any demand for jury trial, and without objecting to non-jury trial has waived any right to a jury trial? We answer both questions in the affirmative. The opinion of the Court of Civil Appeals is vacated, and the judgment of the trial court is affirmed. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT'S ORDER TERMINATING PARENTAL RIGHTS IS AFFRIMED Bill Chaffin, Attorney at Law, Davis, OK, for Appellant. James English, Murray County, Assistant District Attorney, Sulphur, OK, for Appellee. Edmondson, J. ¶1 Mother, Brianna Tatum sought certiorari review of an unpublished majority opinion from the Court of Civil Appeals, Div. 1 affirming the termination of Mother's parental rights. Mother challenged every ground listed in the termination order. The Court of Civil Appeals noted that where multiple grounds for termination are challenged on appeal, it can affirm termination orders where one statutory ground exists. 10A O.S. 2015 Supp., § 1-4-904 (B); Matter of J.J.P., 2018 OK CIV APP 5, ¶ 15, 408 P.3d 218, 223. The Court of Civil Appeals affirmed on the basis that all conditions of 10A O.S.2015 Supp., § 1-4-904 (B) (17) were met: (1) both children were younger than four years old at the time of foster care placement; (2) at the time of filing the application to terminate parental rights, the children had been in foster care for at least six of the preceding twelve months; (3) that the children could not safely be returned to the home of Mother; and (4) and termination was in the best interest of the children. FACTS AND PROCEDURAL HISTORY ¶2 On July 2, 2020, DHS made an emergency removal of Brianna Tatum's (Mother) children and placed them in foster care.1 The ages of the children on July 2, were two (2) years ten (10) months old, and eight (8) months old. Both children were under the age of four (4) years old on August 31, 2020, sixty (60) days after the date they were removed from the home.2 Prior to removal, the children were living with their legal guardian and grandmother, in conditions described by the Department of Human Services (DHS) as "deplorable and unsafe." ¶3 On July 17, 2020, the Murray County assistant district attorney initiated this action against Mother seeking a determination that the children were deprived for the following reasons: 1. Failure to protect. That the mother has allowed the children to live in deplorable and unsafe conditions while taking no action to remove or protect them. 2. Illegal Drug Use. That the mother has a history of using illegal drugs. 3. Financial Instability. That the mother did not graduate high school and has never been employed; further that she is unable to meet the financial needs of the children. 4. Mental Health Instability. That the mother has mental health conditions for which she should obtain and/or maintain treatment. 5. Incarceration Due to Criminal Activity. That the mother has been incarcerated for illegal activity. 6. That the children are at further risk of harm if left in the custody of the mother. Mother stipulated to each of the above allegations. The children were adjudicated as deprived on December 9, 2020. ¶4 The trial court entered an Order of Disposition on January 12, 2021, incorporating the Individualized service plan (ISP) developed by DHS with the recommendation for reunification. The ISP noted the following: Ms. Breanna Tatum failed to protect her children in that she does not have suitable housing for the children to reside in and allowed them to reside with Mrs. Judy Tatum in deplorable and unsafe conditions. Ms. Breanna Tatum continues to abuse illegal drugs. Ms. Breanna Tatum has no employment which left her without the ability to provide for her children financially. Ms. Breanna Tatum appears to have unmanaged mental health issues as evident by her continued substance abuse, violent relationships and criminal activity.3 To achieve reunification, the Court ordered Mother to comply with the provisions of the ISP to correct the conditions that led to the deprived status. Mother signed the ISP; the Disposition Order contains the following emphasized language: "The ISP is incorporated herein and made a part of the dispositional order of the court and all parties are hereby ordered to fully comply with its provisions."4 Mother was provided a copy of the ISP with the specific expectations and milestones necessary for reunification. This ISP included the following mandatory requirements: 1. Substance Abuse: Ms. Tatum shall complete a Substance Abuse Assessment and follow all recommendations; shall not use any illegal drugs or alcohol and shall only take medications as prescribed by healthcare professional; Mother shall submit to random urinalysis as requested by DHS; Ms. Tatum shall attend, participate and complete a certified long term rehabilitation program, follow all recommendations; shall demonstrate successful completion and provide Certificate of Completion and articulate a realistic relapse plan to include arranging for the safety and security of her children in the event of relapse; 2. Mental Health: Mother shall participate in individual counseling and follow the recommendations; shall demonstrate a change in her behaviors, ie. putting her children's needs before the needs of herself; to maintain a healthy, stable, positive mental health state so as not to expose her children to dangerous and neglectful situations; 3. Financial security: Ms. Tatum shall maintain a legal source of adequate income in order to find and maintain a safe and stable home; to provide financial support for the daily needs of her children; create and follow a weekly budget; 4. Child Well Being: Ms. Tatum shall attend, participate and complete DHS parenting course with certificate of completion; shall be able to effectively demonstrate principles learned in parenting course during visitations with children and establish parental relationship with children; 5. Medical: Ms. Tatum shall obtain and maintain primary care physician and dentist for herself and children; upon reunification will maintain the physician and dental health for herself and children. The ISP also included the following cautionary language emphasized with bolded lettering: TO THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT, ITS PURPOSE IS TO HELP YOU PROVIDE YOUR CHILD WITH A SAFE HOME WITHIN THE REASONABLE PERIOD SPECIFIED IN THE PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE YOUR CHILD WITH A SAFE HOME OR ATTEND COURT HEARINGS, YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU. The trial court noted in the Disposition Order that: The proposed ISP was reviewed in open court with the parent(s) or legal custodian who acknowledged that she understood the conditions to be corrected, the plan requirements and that failure to correct the conditions that led to the deprived adjudication and/or failure to follow the orders of the court and/or failure to appear in court could result in the termination of their parental rights to the child.5 ¶5 Three months later, on April 8, 2021, the DHS caseworker reported that Mother was making progress with respect to her ISP. She was in a substance abuse program, participating in group activities, participating in counseling, visiting her children per the recommended schedule, and completed the DHS parenting course. In January 2021, Mother had married, and resided at the Sober Living facility with her husband. At the April permanency review, the trial court described Mother's progress with the ISP as "adequate." ¶6 Less than two months later, in May, 2021 Mother's progress halted when she made the following choices: (1) She left the drug treatment program before completion; (2) she stopped communicating with her DHS caseworker; (3) she ceased visiting or communication with her children; (4) she left the state of Oklahoma with her new husband, as he was "on the run" to avoid a criminal arrest warrant from another Oklahoma county; and (5) she failed to respond to two separate requests from DHS for drug testing. The couple navigated through several states before getting arrested and held in Georgia. ¶7 The DHS caseworker noted in the ISP Progress Report filed September 23, 2021: 1. On June 8, 2021, DHS was notified that Mother no longer resided at Wayfinder Sober Living and had left two to three weeks prior per the Wayfinder program director; she did not complete her rehabilitation program. 2. DHS contacted Mother- Mother texted that she and her husband had "bought a house" in Sulphur and that she completed the Sober Living program on June 4, 2021, and would be moving into the new house in two weeks; in this same conversation she admitted that she was living in a motel in Ardmore until the closing on the house. The caseworker indicated that Mother was considered homeless as she has no stable residence and had left the Sober Living program. 3. Prior to June 8, Mother was in weekly and sometimes 2-3 times a week contact with her caseworker. After June 8, there was no regular contact. 4. Visitation supervised by DHS had been weekly, Mother was attending visitation with her children via transportation with DHS each week to Norman; she has not visited or communicated with her children since June 2021. 5. Mother failed to show up for a meeting with DHS caseworker set for July 8, 2021. 6. Mother did not respond to urinalysis test requests on July 20, 2021, or August 16, 2021, which are considered positive without the test being taken. 7. Mother had not been in contact with DHS since July 7, 2021; however, she contacted a caseworker on September 9, 2021, to advise she was incarcerated in Georgia at the Henry County jail. 8. Mother gave birth to her fourth child and the baby was left with her husband's sister. 9. Mother's children, E.J.T. and C.T.T. were observed to be happy and active in their foster home and bonded with their foster parents. ¶8 The district attorney filed an Application for Termination of the Parental Rights of Mother on October 6, 2021. The children had been in foster care since July 2, 2020. In support of this request the district attorney stated the following: 1. That an Order of Disposition was entered on January 12, 2021, and incorporated the ISP and the mother was ordered to comply by correcting certain conditions. 2. That Mother has not had custody of E.J.T. and C.T.T. for at least six (6) out of the last twelve (12) months prior to filing the application and she has willfully failed, refused or neglected to contribute to the support of the children as specified by an order entered by a court of competent jurisdiction adjudicating the duty, amount and manner of support. 3. That the children younger than four (4) years of age at the time of placement have been placed in foster care by DHS for at least six (6) of the twelve (12) months preceding the filing of the application and the children cannot be safely returned to the home of the mother. 4. A finding that: a. The mother has failed to correct the conditions which led to the deprived adjudication of the children, and the mother has been given at least three (3) months to correct the conditions, including but not limited to: i. The mother has failed to obtain/provide proof of obtaining a substance abuse assessment. ii. The mother has failed to attend/participate in individual counseling. iii. The mother does not have suitable employment to support the needs of the child. iv. The mother has failed to obtain suitable housing with working utilities for the children to reside in. v. The mother has failed to demonstrate the principals learned in her parenting classes. vi. The mother has failed to maintain contact with the Department of Human Services. vii. The mother has failed to maintain visitation with the children. 5. The mother is incarcerated, and the continuation of her parental rights would result in harm to the children. 6. Termination of the mother's parental rights is in the best interest of the children.6 ¶9 In December 2021, the caseworker's recommendation shifted from "reunification" to "adoption."7 The trial court, with the agreement and request of the parties, struck and reset the hearing date for the initial appearances several times. On May 5, 2022, the initial appearance on the State's application to terminate parental rights of Mother was held. The trial court noted in its May 5, 2022, Court Minute: Respondent Mother's attorney, Bill Chaffin, appears in person. Respondent Mother appears via tele-conference from the Henry County Jail, McDonough, Georgia. Respondent Mother was advised as to the State's Allegations and her rights to an attorney, to a Jury Trial or Non-Jury Trial, and rights to be present and to cross examine witnesses. Respondent Mother waives jury trial and requests this matter be set for non-jury trial. Respondent Mother also agrees to appear via tele-conference or video conference for trial if she is still incarcerated. (emphasis added).8 A copy of this Court Minute was provided to all parties. Mother's attorney raised no objection to his client's waiver of jury trial at this initial appearance and he never made a demand for jury trial. Mother never filed a pleading with the trial court asserting the Minute Order was in error, and never filed a pleading making a demand for jury trial. ¶10 The trial court conducted the non-jury trial on the Application for Termination of the Parental Rights of Mother on September 1, 2022. Mother appeared by video conference and Mother's lawyer was present in the courtroom. At trial, Mother never objected to her waiver of jury trial, and never demanded a jury trial. Instead, she proceeded without objection to a non-jury trial. Mother raised other unrelated objections which were overruled and were not raised on appeal or certiorari.9 Mother has never asserted that she did not waive her right to jury trial at the initial appearance, only that the record is insufficient to establish her waiver. ¶11 The DHS caseworker testified at the termination hearing that: 1. Mother failed to obtain a substance abuse assessment. 2. Mother left the substance abuse treatment facility and failed to complete a long-term drug rehabilitation program. 3. Mother never provided any drug and alcohol tests, urinalysis, or hair follicle tests. 4. Mother has not visited her children since June 2021; according to the foster parents, Mother has not attempted any phone calls to her children since the incarceration. 5. DHS caseworker believes that the children are currently in a safe environment with the foster family. 6. DHS caseworker believes the children would face threat of harm if returned to Mother's custody and if her parental rights were not terminated. 7. DHS caseworker testified she believes that it is in the children's best interest to have Mother's parental rights terminated. 8. DHS caseworker testified that Mother failed to correct the conditions that led to children being placed in DHS custody. ¶12 Mother admitted to knowing she was required to do the following: (1) parenting classes; (2) mental health counseling; (3) drug rehabilitation; and (4) visitation with children. Mother testified that she did begin to work on the required ISP items, but for only five months. Mother admitted to leaving the rehabilitation program without completing it because she chose to leave the state with her husband who was a fugitive from justice. When asked if she considered the impact on her children when she made the decision to leave Oklahoma, her only response was: "I don't know."10 When asked why she left Sober Living, the drug treatment facility, she responded: "Oh why? I don't know, because I'm stupid."11 Mother admitted that she had every opportunity to work on her ISP treatment plan but she made a choice to leave the drug treatment facility.12 In response to a question posed by her lawyer, Mother testified that she would like to continue participating in the ISP plan and would have done so if she had not been arrested and placed in jail. ¶13 After leaving Oklahoma, Mother and her husband went to Louisiana, Connecticut, Texas, and Georgia where they were finally arrested. She was arrested for bringing stolen property, a car, and a tag into Georgia. Mother testified that she and her husband tendered a bad check to purchase a car in Oklahoma. When asked why the trial court should not terminate her parental rights her only response was: "because they're my kids and I'm gonna fight for them. No matter what happens in this courtroom today, I'm still going to fight for them. So, you haven't seen the last of me, is all I have to say."13 ¶14 At the conclusion of the hearing, the trial judge announced "there's more than sufficient evidence to sustain the petition to terminate parental rights and "finds it's in the best interest of the minor children that the application for termination of parental rights be sustained and that the legal relationship of parent and child between the respondent mother and the minor children be terminated forthwith."14 The following day, the trial court completed a statutory pre-printed form and also filed a more specific detailed Order which included some of the following findings: 1. The minor children were removed in July 2020. 2. The minor children were adjudicated as deprived children on December 9, 2020. 3. Mother was present at the deprived adjudication hearing and the disposition hearing. 4. A treatment plan was approved by the trial court on January 12, 2021. 5. In June 2021, Mother ceased any contact with DHS and her children. 6. Mother was residing in Murray County prior to June 2021 with her husband. 7. Mother left Oklahoma in June 2021 with her husband to flee from charges he had pending in Bryan County, Oklahoma. 8. From June 2021 through August 2021 Mother resided in four different states with her husband. 9. On August 13, 2021, Mother was arrested and incarcerated in Henry County, Georgia on multiple felony charges; charged with bringing stolen property into Georgia. 10. The State filed an Application for Termination of Parental Rights on October 6, 2021. 11. Mother was visiting with E.J.T. and C.T.T. and making minimal progress prior to June 2021. 12. Mother was incarcerated as of the date of the hearing, and she did not know when she would be released. 13. Since June 2021, Mother failed to maintain contact with DHS, failed to obtain a substance abuse assessment; left a sober living program shortly after starting; Mother failed to participate in individual counseling; and Mother remained unemployed. 14. As of the date of the hearing, September 1, 2022, Mother had been incarcerated for 13-14 months, and remained incarcerated as of the date of the hearing; she was facing multiple felony charges. 15. Mother did not have suitable housing; Mother failed to provide any child support for the minor children since this matter was filed and is currently in arrears in the amount of $4,269.66. 16. Mother has failed to maintain contact with the children since June 2021. 17. Respondent had outstanding warrants from Murray County, Oklahoma in Case Numbers CF-21-157 and CF-19-43. 18. E.J.T. and C.T.T. have been in foster care since July 17, 2020, or approximately 25 months. 19. The Court finds it is in the best interests of the minor children that the parental rights of Mother, Brianna Tatum's be terminated; State's Application for Termination of Parental Rights is sustained. ¶15 Although Mother challenged the termination order on multiple grounds, a termination order may be affirmed where only one statutory ground is met. 10A O.S. § 1-4-904 (B); see e.g., Matter of J.J.P.., 2018 OK CIV APP 5, ¶ 15, 408 P.3d 218, 223)"15 The Court of Civil Appeals affirmed the termination order based on the statutory ground for termination 10A O.S. § 1-4-904 (B) (17), was met. Mother received notice of this ground for termination of her parental rights; she advanced no argument or evidence to dispute the application of this section.16 ¶16 In addition, on appeal, Mother argued that the record did not show she competently, knowingly, and intelligently waived her right to a jury trial. The Court of Civil Appeals held: (1) Mother consented to a nonjury trial by affirmatively waiving the right in open court and by her conduct of appearing and proceeding with a non-jury trial, and the trial court did not err by proceeding with a non-jury trial; and (2) that a termination order can be affirmed where only one statutory ground for termination is met, affirming that the grounds for termination were met under 10A O.S.2015 Supp., § 1-4-904 (B) (17).17 Following the issuance of the Court of Civil Appeals' opinion affirming the trial court, Mother filed her Petition for Certiorari. We granted Certiorari on October 30, 2023. STANDARD OF REVIEW ¶17 The trial court's decision to terminate parental rights should be affirmed on appeal if there is clear and convincing evidence in support. In re S.B.C., 2002 OK 83, ¶ 5, 64 P.3d 1080, 1082. We review the issue of waiver of the right to jury trial for abuse of discretion. Matter of J.L.O., IV, 2018 OK 77, ¶ 22, 428 P.3d 881, 889. ANALYSIS ¶18 Generally, our certiorari review is limited to those issues raised in the petition with supporting legal authority and argument.18 Issues raised on certiorari without legal authority or argument need not be addressed by this Court.19 Mother raised only one issue on certiorari with authority and argument: whether the record supports a finding that Mother gave a competent, knowing and intelligent waiver of her right to jury trial. Mother did not raise any procedural due process issues other than referring to the dissent in the Court of Civil Appeals opinion before us, which cites no specific Oklahoma statutory violations; Mother cited no authority or argument in support.20 Our review on certiorari is limited to the only issue properly preserved, that the record does not support a finding that Mother waived jury trial. ¶19 Mother charges that the Minute Order fails to affirmatively reflect her "voluntary" waiver of jury trial. Mother does not argue that she did not voluntarily waive this right, only that the record is deficient. A parent facing termination of the severance of the parent-child relationship has a constitutional right to a trial by jury.21 This right to jury trial in a parental termination case can be surrendered by voluntary consent or waiver.22 This waiver must be "competently, knowingly, and intelligently given."23 Mother argues on Certiorari that the Court Minute cannot meet this standard, because it did not include "clear showing through an examination by the trial court" and the Court Minute did not include the word "voluntary" with respect to her waiver. We note that the Court Minute documents that Mother requested a non-jury trial in the presence of her lawyer, a fact that Mother never disputes. We examine this matter under an abuse of discretion standard to discern if the record supports the trial court's finding that Mother competently, knowingly, and intelligently waived her right to jury trial. ¶20 We begin our analysis with Mother's sole argument that a "minute order" does not satisfy the waiver of the jury statute which allows waiver by "oral consent, in open court, entered on the journal."24 In support, Mother relies on an argument that this Court has never defined "on the journal" but urges that this Court previously adopted the position that a journal entry "in which the trial court recites that theretofore a jury had been waived by statement made in open court, is not sufficient to constitute a waiver." Okmulgee Producing & Ref. Co. v. Wolf, 1923 OK 57, ¶ 8, 212 P. 415, 416. Mother's argument is misleading and distorts our guidance in Wolf. Mother relied on a small phrase, taken out of context, from a much longer sentence. Our actual pronouncement was: Had counsel for the defendant in open court by oral consent waived a jury prior to such date, a journal entry thereof should have been entered, and, no such journal entry having been made, a journal entry made at the time the jury was demanded, in which the trial court recites that theretofore a jury had been waived by statement made in open court, is not sufficient to constitute a waiver. Id. (emphasis added). After learning the controversy was set on the equity, non-jury docket, the Wolf defendant filed a motion seeking relief notifying the court it had not waived jury trial and demanding the matter be set before a jury. Following arguments of counsel, the trial court issued an order denying defendant's demand for jury trial finding that defendant waived this right in a previous court appearance. Defendant disputed waiving this right. In its order, the court relied on (1) its "recollection of a statement made in open court by ... the counsel for defendant" in some prior court appearance; and (2) a telegram signed by defendant's counsel, the contents of which were not discussed nor was this 'telegram' included in the appellate record. Id. at ¶ 3. When the matter proceeded to trial, the defendant again demanded a jury trial and asserted that it had never waived jury trial. The trial court again denied defendant's demand for jury trial. On appeal, the plaintiff urged that the trial court's order from the prior hearing which recited that defendant had previously waived jury trial in open court, satisfied the waiver of jury statute then in effect: "By oral consent, in open court, entered on the journal."25 We made clear in Wolf that the entry "on the journal" must be to memorialize the contemporaneous waiver, not reciting that a party had waived jury trial in a prior court proceeding. A journal entry prepared at the time an actual demand for jury trial is made reciting a prior waiver, where no entry on the journal was ever recorded for such prior waiver, is not sufficient to constitute a waiver.26 This is not a waiver which would have been given in open court "on the journal." The journal entry examined in Wolf arose from a hearing and trial wherein the defendant was demanding jury trial, not waiving the right. ¶21 Unlike Wolf, in the matter before us, Mother has never made a demand for jury trial, and she acknowledged in open court in the presence of her lawyer that not only did she waive jury trial, but she also requested a non-jury trial. The May 5, 2022, Court Minute reflects the contemporaneous hearing where Mother appeared by tele-conference and her counsel appeared in person. This order established: (1) Mother was present via tele-conference; (2) Mother's lawyer appeared in person before the trial court; (3) the trial court advised Mother of her rights to an attorney, to a jury or non-jury trial and her rights to be present to examine witnesses; (4) Mother gave her verbal consent to waive jury trial, consented to a non-jury trial in open court, "Respondent Mother waives jury trial and requests this matter be set for non-jury trial." After this Court Minute was provided to the parties we note that: 1. Mother's lawyer never argued that this Court Minute was incorrect or erroneous. 2. Mother never asserted that she did not waive jury trial; she never requested a jury trial. 3. Mother was represented by her lawyer who was personally present at this initial appearance; her lawyer never made a demand or request for jury trial at the initial appearance, at trial, in her Petition in Error, or on Certiorari. 4. Mother's lawyer did not object during the initial appearance hearing to his client's waiver of jury trial. 5. Mother's lawyer never objected at the trial on termination of parental rights, to proceeding with non-jury trial. 6. Mother has not asserted that she did not waive jury trial only that the Court Minute was inadequate to establish such waiver. The trial court is in the "best position to observe an individual who waives a substantial and significant right."27 In this instance, the trial court personally spoke to Mother, explained her rights to a jury trial, in the presence of her legal counsel whom the trial court also observed. The trial court determined that Mother waived jury trial and so reflected on the Court Minute. ¶22 Moreover, litigants represented by counsel who complete pre-trial discovery, appear at trial never objecting to non-jury trial or demanding a jury trial, and only after losing demanded a jury trial are often referred to as "laying behind a log."28 Such practices are generally met with disfavor in the courts. It is clear from the record that Mother proceeded with the non-jury trial without any demand, oral or written, for jury trial, Mother never objected to the Court Minute reflecting her waiver. Mother's conduct, proceeding with non-jury trial without any demand oral or written, for jury trial, constitutes a waiver of jury trial.29 It has been recognized for more than a century that a litigant's conduct can create a waiver as we said in Smith v. Smith, 80 Okla. 136, 184 P. 82 (1919): [W]here the parties to an action make no request for a jury at any stage of the trial or prior to the commencement thereof, and submit their testimony to the court without a jury, no question of a jury trial having been raised upon the trial of the cause, it is too late for the first time to object in this court that such consent had not been made, and where no request for a jury appears of record, the jury will be considered waived. Id. 184 P. at 82, (syllabus by the Court), (emphasis added). We also noted in Smith that where the parties appear without demanding jury trial, the parties appear for trial, "and submit their testimony to the court without a jury, and the record in the trial court is silent upon the question of jury trial, this is tantamount to an express waiver of a trial by jury, and an objection thereto and demand for a jury thereafter will not be considered by this court." Id. 184 P. at 85. ¶23 The only issue before us on Certiorari is whether the record demonstrates that Mother's constitutional right to a jury trial in a parental termination case was competently, knowingly, and intelligently given.30 The trial court was in the best position to observe this waiver, in open court in the presence of her lawyer. No objection has ever been raised to the Minute Order reflecting her waiver, and at no time has a demand for jury been made. Furthermore, Mother proceeded with non-jury trial, never demanding jury trial, or raising any objection to the non-jury trial, until after the adverse ruling. In addition, this conduct alone would constitute a waiver of jury trial. We hold the trial court did not abuse its discretion in proceeding with a non-jury trial in this matter. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT'S ORDER TERMINATING PARENTAL RIGHTS IS AFFRIMED ALL JUSTICE CONCUR FOOTNOTES 1 ROA, Doc. #4, Ind. Serv Plan, Jan. 11, 2021. 2 For purposes of terminating parental rights, on the date of filing a termination petition, there must be a finding that a child was younger than four years of age at the time of placement in foster care and they were placed for at least six of the preceding twelve months. 10A 2015 Supp., § 1-4-904 (B) (17) Termination of Parental Rights -- (B) The court may terminate the rights of a parent to a child based upon the following grounds: **** (17) A finding that a child younger than four (4) years of age at the time of placement has been placed in foster care by the Department of Human Services for at least six (6) of the twelve (12) preceding the filing of the petition or motion for termination of parental rights and the child cannot be safely returned to the home of the parent. (a) For purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of: (1) the adjudication date, or (2) the date that is sixty (60) days after the date on which the child is removed from the home. b. For purposes of this paragraph, the court may consider: (1) the circumstances of the failure of the parent to develop and maintain a parental bond with the child in a meaningful, supportive, manner, and (2) whether allowing the parent to have custody would likely cause the child actual serious psychological harm or harm in the near future as a result of the removal of the child from the substitute caregiver due to the existence of a strong, positive bond between the child and caregiver. (emphasis added). 3 ROA, Doc. # 4, ISP Dispositional Report, 1-11-21 4 ROA, Doc. No. 5, Disposition Ord., 1-12-21. 5 ROA, Doc. 5, Disposition Order, p. 39, (emphasis added). 6 ROA, Doc. # 12, 10-6-21. 7 ROA, Doc. # 14, Ind. Serv. Plan, 12-28-21. 8 ROA, Doc. # 20, Court Minute, 5-17-21; While we note that the date of the initial appearance was May 5, 2022, and the Court Minute was not filed until May 17, 2022, we find this inconsequential to the issue of whether Mother waived jury trial on the date of hearing. We note that no objection was ever raised either through a pleading or during a hearing or even on appeal that this Court Minute was in any way inaccurate or failed to accurately reflect what transpired at the court appearance. 9 ROA, Doc. No. 25, Tr. of Term. Of Parental Rights, p. 15. 10 Id. at p. 55. 11 Id. at p. 57. 12 Id. at p. 58. 13 Id. at p. 48. 14 Id. at p. 64. 15 Court of Civil Appeals Opinion, 120,735, unpublished. 16 Although Mother did not preserve review of this termination grounds on certiorari, we note that there is clear and convincing evidence that each prong of Section (B) (17) was met and Mother had no disputing evidence, and she never argued she did not get Notice of this grounds for termination. The record reflects this statutory ground for termination was specifically listed in the State's application. 17 10A O.S. Supp.2015, § 1-904 (B); See also, Matter of J.J.P., 2018 OK CIV APP 5, 408 P.3d 218. 18 Beyrer v. The Mule, LLC, 2021 OK 45, ¶ 9, 496 P.3d 983, 987. 19 State ex rel. Dept. of Pub. Safety v. 1985 GMC Pickup, Serial No. 1GTBS14EOF2525894, OK Tag No. ZPE852, 1995 OK 75, ¶ 19, 898 P.2d 1280, 1284--85; See also, Hough v. Leonard, 1993 OK 112, 867 P.2d 438. 20 We note that Mother admitted during trial that (1) she had notice of and understood all of the components of the ISP, and what was expected of her for reunification, and (2) that she voluntarily left Oklahoma and abandoned her drug rehabilitation program, mental health counseling, and visitation with her children. We also note that the State outlined with specificity in its application for termination, sufficient to reasonably inform Mother that her legally protected interest, ie. parental right, may be adversely affected. In re T.T.S., 2015 OK 36, ¶ 19, 373 P.3d 1022, 1029. Although we do not reach this issue today, we do note that at a minimum, the record reflects that the deprived adjudication included findings of substance abuse, Mother's subsequent acknowledgement, by signing the ISP and her testimony at trial, of the following: mandatory requirement for substance abuse evaluation, the completion of a drug rehabilitation program, drug screening, and mental health counseling. The final order included these precise conditions that Mother failed to correct, and of which Mother admitted at trial her knowledge and her failure to correct. 21 A.E. v. State, 1987 OK 76, ¶ 21, 743 P.2d 1041, 1047-1048. 22 Matter of J.L.O., IV, 2018 OK 77, ¶ 22, 428 P.3d 881, 889. 23 Id. 24 12 O.S. 2021, §591. Waiver of jury. The trial by jury may be waived by the parties, in actions arising on contract, and with the assent of the court in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal. 25 Id. 26 Wolf, Supra. at ¶ 8, 212 P. at 416. 27 Matter of J.L.O. Supra, note 22, ¶ 23, 428 P.3d at 889. 28 Matter of Termination of Parental Rights, 1993 OK 10, ¶ 8, 847 P.2d 768, 770. 29 Id. 30 Supra., Matter of J.L.O., Supra., note 22.

881852e2-a3bf-446c-8568-498278a9b6c6

STRICKLEN v. MULTIPLE INJURY TRUST FUND

oklahoma

Oklahoma Supreme Court

STRICKLEN v. MULTIPLE INJURY TRUST FUND2024 OK 1Case Number: 120753Decided: 01/30/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. GARY STRICKLEN, Petitioner,v.MULTIPLE INJURY TRUST FUND, and THE WORKERS' COMPENSATION COMMISSION, Respondents. PROCEEDING TO REVIEWTHE WORKERS' COMPENSATION COMMISSION EN BANC ¶0 Petitioner filed a claim for permanent total disability with the Workers' Compensation Commission. An administrative law judge sustained a motion to dismiss filed by the Multiple Injury Trust Fund, and petitioner sought review before the Commission en banc, and the Commission affirmed the decision by the administrative law judge. Petitioner sought review of the Commission's decision in the Oklahoma Supreme Court, and filed a motion to retain review in this Court. Petitioner's motion to retain the proceeding in this Court was granted. We hold: the phrase "subsequent employer" in 85A O.S.Supp.2019 § 32 refers to the employer at the time of employee's "subsequent injury" also referenced in 85A O.S.Supp.2019 § 32, which injury is used for the purpose of that statute for a claim against the MITF in accordance with that statute. ORDER OF THE WORKERS COMPENSATION COMMISSION REVERSEDAND CAUSE REMANDED FOR FURTHER PROCEEDINGS Darrell R. Paul, Quandt Law Firm, Tulsa, Oklahoma, for petitioner. Travis R. Colt, Connor E. Brittingham, Latham, Steele, Lehman, Keele, Ratcliff, Freije & Carter, P.C., Tulsa, Oklahoma, for respondent, Multiple Injury Trust Fund. EDMONDSON, J. I. Summary ¶1 Petitioner brought a claim against the Multiple Injury Trust Fund (MITF) based upon his permanent total disability from a combination of previously adjudicated injuries. The Fund argued it was not liable because the phrase "subsequent employer" in 85A O.S.Supp.2019 meant that a claim against the Fund required petitioner's previously adjudicated injuries to have occurred with an employer other than his employer at the time of his last and most recent injury. Petitioner argued the MITF's view of "subsequent employer" made the statute an unconstitutional "special law." The Commission's administrative law judge and the Commission agreed with the MITF and denied petitioner's claim. We need not address the constitutional issue raised by the parties because: (1) We conclude the controverted statutory language does not have a meaning which would raise the constitutional issue addressed by the parties; (2) We reverse the Commission's order that was based upon the erroneous view of the controverted statutory language; and (3) The cause is remanded for additional proceedings before the Commission on petitioner's claim. II. Parties' Claims ¶2 The parties agree petitioner had four previous workers' compensation adjudications for injuries between 2008 and 2019. His injuries occurred during twenty years he was employed by the Grand River Dam Authority (GRDA). Petitioner's last injury was adjudicated in June 2021, and he filed a claim in July 2021 for permanent total disability (PTD) with the Workers' Compensation Commission. ¶3 Petitioner sought compensation for PTD from the MITF. The administrative law judge's order stated: "Claimant satisfies the requirements of 85A O.S. §30(A)(3), and was a 'physically impaired person' when he suffered his last injury on September 25, 2019."1 The administrative law judge's order states petitioner's "total combined disability, including the permanent partial disability previously adjudged . . . and the permanent partial disability resulting from Clamant's last injury of September 19, 2019, is 54% to the body as a whole."2 ¶4 The MITF argued petitioner's claim was not allowed against the MITF because 85A O.S.Supp.2019 § 32 required a claimant's employer for his last injury to be a different employer than the employer for his previous injuries. An administrative law judge sustained the MITF's motion to dismiss on June 8, 2022, and petitioner requested review by the Workers' Compensation Commission en banc.3 The Commission concluded the administrative law judge's decision was "neither against the clear weight of the evidence, nor contrary to law," and sustained the dismissal.4 After the Commission's decision, petitioner filed a petition for review in this Court5 and requested we retain the matter. We granted petitioner's motion to retain and the parties filed briefs for our review. ¶5 The parties discuss 85A O.S. 2019 § 32, and state language therein refers to different employers for successive workers' compensation injuries. A portion of this statute states as follows. A. If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Administrative Workers' Compensation Act which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities results in disability materially greater than that which would have resulted from the subsequent injury alone, the employee may proceed against the Multiple Injury Trust Fund for permanent total disability. Only disability due to an injury to the body as a whole at a subsequent employer shall be combinable with a prior body disability, except that disability to a member may be combined with disability to the body as a whole. If such combined disabilities constitute permanent total disability, as defined in Section 2 of this title, the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injury. In addition, the employee shall receive compensation for permanent total disability if the combination of injuries renders the employee permanently and totally disabled. The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. The compensation rate for permanent total disability awards from the Multiple Injury Trust Fund shall be the compensation rate for permanent partial disability paid by the employer in the last combinable compensable injury. 85A O.S.Supp.2019 § 32(A) (emphasis added). The administrative order sustaining the MITF's motion to dismiss concludes the liability of the MITF should be based upon whether the GRDA was a "subsequent employer" for the purpose of 85A O.S.Supp.2019 § 32(A). The order states a "subsequent employer" must mean an employer "which follows a prior employer in time, order, or place."6 The order appears to indicate the MITF would be liable if any of petitioner's adjudicated injuries occurred with an employer other than the GRDA. The MITF argues it is not liable because all of petitioner's adjudicated injuries occurred while employed with the GRDA. ¶6 The MITF indicates the term "subsequent" is used in the statute to decrease MITF liability by increasing workers' compensation liability for Oklahoma employers who continue to employ an injured employee with combinable adjudicated injuries until the employee would otherwise be entitled to PTD from the MITF if the employee had more than one employer. The MITF argues Stricklen's disability is the type to be compensated by an employer. The MITF states its "purpose has never been to stand as a 'prime, original, or substitute obligor,' for the employer."7 In other words, the MITF argues it cannot be liable because the workers' compensation liability for an employee's PTD from combined adjudicated injuries should rest with the "prime, original, or substitute obligor," and not the MITF. ¶7 The MITF did not argue Stricklen actually possessed a workers' compensation remedy for PTD against the GRDA. Instead, the MITF indicates different and successive injuries that are combined for an assessment of PTD is a type of disability which should be placed on an employer and not the MITF when the injuries involve a single employer. The MITF argues shifting MITF liability to an employer serves (1) the original purpose when the MITF was created as the State Indemnity Fund, and (2) a public purpose seeking to decrease MITF liability. The MITF appears to indicate its original purpose involved a public policy for assisting employers who hired employees with injuries, but not a policy to assist either employers who retained employees with injuries or injured employees desiring to be employed. ¶8 The MITF argues: (1) Two groups of employers, (a) those employers who employ a person who had a previous workers' compensation injury with that employer, and (b) those employers with employees without a previous workers' compensation injury with that employer, are not similarly situated employers for the purpose of the Oklahoma Constitution, and (2) The Legislature may possess a public policy to withdraw MITF liability for an employer who prefers to retain, or at least not terminate from employment, an employee who possessed a previously adjudicated workers' compensation disability with the employer. ¶9 The petitioner claims the phrase "subsequent employer" in 85A O.S.Supp.2019 § 32 made the statute "an unconstitutional special law." The administrative law judge concluded: "Claimant has not identified which enumerated subject listed in Article 5, §46 prohibits the application . . . [of the statute and] [w]ithout such identification, it is impossible for the Commission to determine whether a prohibited special law was passed in violation of Article 5 § 46."8 We have recently explained: "The Oklahoma Constitution, Art 5, § 46, prohibits the Legislature from passing special laws relating to specific subject areas, and Art. 5, § 59 requires the Legislature to enact a general law, and not a special law, whenever possible."9 ¶10 Petitioner argues 85A O.S. Supp.2019 §32 violates Okla. Const. Art. 5 § 46, and he quotes from: (1) Zeier v. Zimmer, Inc., 2006 OK 98, ¶13, 152 P.3d 861, 868, where we stated "The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things;" and (2) Ponca Iron & Metal, Inc. v. Wilkinson, 2010 OK 75, 2010 OK 75, 242 P.3d 534, where we explained two principles. First, a violation of Okla. Const. Art. 5 § 46 occurs when a statute possesses "a classification that is arbitrary and capricious and bears no reasonable relationship to the object of the Legislation." Secondly, the classification rests "on a false or deficient classification" in the context of a statute of limitations for a terminated employee with cumulative trauma injuries and a different limitations period for non-terminated employees with the same injuries for the purpose of workers' compensation claims. Petitioner's appellate brief cites Okla. Const. Art. 5 § 59 and argues 85A O.S.Supp.2019 § 32 is an unconstitutional special law. He relies upon three of our opinions applying Okla. Const. Art. 5 § 59 in support of his argument.10 ¶11 In summary, both parties agree 85A O.S.Supp.2019 § 32(A) is a "special law" by targeting or classifying some employers for workers' compensation liability. Their disagreement is whether the statute is a special law that violates the Oklahoma Constitution. III. Review of Commission's Order ¶12 The law in effect at the time of the injury controls petitioner's claim and the standard of review by an appellate court.11 Pursuant to 85A O.S. Supp.2019 § 78, this Court may modify, reverse, remand for rehearing, or set aside the Commission's order based upon provisions set forth in section 78,12 which include an order affected by an error of law.13 The proposed error of law disputed by petitioner and respondent is whether the phrase "subsequent employer" in 85A O.S.Supp.2019 § 32 has a meaning that violates one of the "special law" provisions of the Oklahoma Constitution. ¶13 We are not required to defer to the parties and the Commission and adopt their meaning for a "subsequent employer" in 85A O.S. §32. A few reasons which independently support this lack of deference include, but are not limited to: (1) If an exercise of judicial or quasi-judicial power gives a meaning to statutory language based upon a party's construction of the statute, then the party's meaning will not necessarily control an appellate court's review and conclusion stating the statutory language has a different meaning as an issue of law;14 (2) Workers' compensation statutes created using a police power are not subject to invalidation by parties' agreement subsequent to the creation of the statute;15 (3) When elements of the MITF's liability are construed as elements of jurisdictional power,16 parties' agreement may not be used to create or extinguish statutorily-defined liability for the MITF,17 or create jurisdiction by consent unless authorized by statute;18 (4) The agreement by parties on meaning of the phrase "subsequent employer" in a statute is not the type of agreement or settlement of a claim authorized by a workers' compensation statute;19 and (5) Although the parties appear to agree the meaning of "subsequent employer" is statutory authority limiting liability of the MITF with petitioner asserting constitutional authority for expanding this liability, as we explain herein another meaning for "subsequent employer" may be used when this other meaning is consistent with MITF workers' compensation statutes, the invoked provisions of the Oklahoma Constitution,20 public policy articulated by legislative enactments, and previous statutory construction by courts combined with subsequent legislative acquiescence.21 Additionally, while an issue for adjudication generally consists of facts and conclusions of law presented by controverted pleadings22 and a lower tribunal's adjudication must be within the scope of issues presented for adjudication by the parties,23 counsel's argument may not be used to limit our explanation of a statutory public-law regulatory scheme and a statute in that scheme when the argument has raised the issue of law for our review.24 ¶14 The parties present the question whether statutory language as construed by the Commission violates the State Constitution. We must determine the meaning of the language in the statute. We must ascertain and give effect to legislative intent and meaning expressed by the statute at issue.25 If the language in the statute is plain and unambiguous, the legislative intent is deemed to be expressed by the statutory language.26 Rules of construction are applied to determine legislative intent when statutory language is ambiguous or conflicting.27 Language in a statute is ambiguous when it is susceptible to more than one reasonable interpretation.28 Whether a statute is susceptible to more than one reasonable interpretation presents an issue of law and is reviewed de novo,29 and the meaning or construction of ambiguous language also presents an issue of law receiving a de novo review.30 ¶15 When a statute contains ambiguous language, we will employ well-known canons for statutory construction. These canons may include, but are not limited to, utilizing plain meaning to the extent allowed by the unambiguous language in order to minimize the degree of ambiguity,31 employing ordinary grammar while recognizing the influence of context,32 construing language to avoid an internal conflict within the statute,33 creating a consistency with other statutes on the same subject,34 noting the presence of any language inconsistent with the statute's purpose,35 reviewing the historical context of the language,36 analyzing court opinions contemporary to the statute's creation and their relation to the statute,37 and determining whether the parties assign meaning to the terms in the statute that destroy the legislative intent, purpose, and goal for the statute at issue.38 The goal when construing ambiguous language is to give effect to the intent of the legislature.39 ¶16 Generally, issues concerning a statute's constitutional validity, construction, and application are questions of law subject to our de novo review.40 When the Court assigns meaning to language in a statute raised by a party and the Court's meaning makes the party's constitutional claim unnecessary for obtaining judicial relief, then the Court need not decide the constitutional claim.41 This approach is consistent with our review in a public-law dispute when the Court "is not required to resolve issues deemed unnecessary for the disposition of the case before it."42 We applied this principle almost one hundred years ago when we explained the meaning and effect of a statute upon the jurisdiction of the State Industrial Commission and we declined to address a constitutional issue raised by a party.43 ¶17 We conclude herein the phrase "subsequent employer" in 85A O.S.Supp.2019 § 32, is reasonably ambiguous. When the whole statute is construed to enforce legislative intent, then the meaning of "subsequent employer" will not support the Commission's order denying petitioner's claim. Because the meaning of the statutory language does not prevent petitioner's claim against the MITF, we need not address the constitutional issue raised by petitioner and we remand for additional proceedings on petitioner's claim. IV. Petitioner's Claim ¶18 The parties ask the Court to construe and apply the statutory phrase "subsequent employer." We must construe and apply legislative intent derived from the plain language in the statute.44 If language in a statute is uncertain, such as when a reasonable reading of the statute shows the presence of contextually ambiguous, vague, or conflicting language, then rules of statutory construction are used to construe and apply legislative intent.45 We must construe a statute "as to give it a sensible effect and a binding force . . . if any reasonable and practical construction can be given to its language."46 ¶19 When parties ask the Court to focus its analysis on a particular word or phrase in a statute, as the parties herein ask us to analyze the phrase "subsequent employer," we are not allowed to ignore the statutory context wherein the particular word or phase appears. Although each word in a statute contributes to an understanding of an articulated legislative intent, courts have historically explained that legislative intent must be determined by the statute as a whole and not solely by an isolated word, phrase, or "particular expression" in the statute.47 We recently explained this principle: "When interpreting statutes, we do not limit our consideration to a single word or phrase. 'Words used in a part of a statute must be interpreted in light of their context and understood in a sense that harmonizes with all other parts of the statute.'"48 ¶20 When construing statutory language we must also consider the meaning of language in additional statutes on the same subject matter "as part of a coherent system," since different statutes on the same subject are generally to be viewed as in pari materia and must be construed as a harmonious whole."49 When two statutes are enacted at the same time and involve the same subject matter, then both statutes are considered for enforcing legislative intent.50 These principles of statutory construction are given additional legislative force in our controversy by one statute, 85A O.S. §30, and its language stating section 30 is used when construing 85A O.S. §32. ¶21 Our preliminary review of 85A O.S. §32 is expanded beyond this section by 85A O.S.Supp.2019 § 30 which includes the following. A. For the purposes of Sections 31 through 35 of this title, the term "physically impaired person" means a person who, as a result of accident, disease, birth, military action, or any other cause, has suffered: . . . 3. Any previous adjudications of compensable permanent partial disability adjudged and determined by the Workers' Compensation Court, the Workers' Compensation Court of Existing Claims or the Workers' Compensation Commission. 85A O.S.Supp.2019 §30 (emphasis added). The Workers' Compensation Commission determined Stricklen was a "physically impaired person" who has suffered "previous adjudications of compensable permanent partial disability adjudged and determined by the Workers' Compensation Court, the Workers' Compensation Court of Existing Claims or the Workers' Compensation Commission." The Commission determined Stricklen was a "physically impaired person" for the purpose of 85A O.S.Supp.2019 § 30, and this statute applies to 85A O.S.Supp.2019 § 32. The first sentence of 85A O.S.Supp.2019 § 32 states as follows. If an employee who is a "physically impaired person" receives an accidental personal injury compensable under the Administrative Workers' Compensation Act which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities results in disability materially greater than that which would have resulted from the subsequent injury alone, the employee may proceed against the Multiple Injury Trust Fund for permanent total disability. 85A O.S.Supp.2019 § 32 (emphasis added). The language from sections 30 and 32 combined state a claimant who is a physically impaired person for section 30 may proceed against the MITF. The MITF appears to agree with the Commission's order finding Stricklen to be a physically impaired person pursuant to section 30. The MITF appears to agree the first sentence of 85A O.S. § 32 states Stricklen "may proceed against the Multiple Injury Trust Fund." But the MITF relies upon the second sentence of 85A O.S. § 32 to strip that statutory right from Stricklen. The second sentence states as follows. Only disability due to an injury to the body as a whole at a subsequent employer shall be combinable with a prior body disability, except that disability to a member may be combined with disability to the body as a whole. 85A O.S.Supp.2019 § 32 (A) (emphasis added). The MITF relies upon the meaning of "subsequent" in the sentence. This term also occurs in the third sentence of the same paragraph. If such combined disabilities constitute permanent total disability, as defined in Section 2 of this title, the employee shall receive full compensation as provided by law for the disability resulting directly and specifically from the subsequent injury. Id. (Emphasis added). The term "subsequent" is used to describe both an employer and an injury. The fifth sentence of the same paragraph references "the employer" and again to a "subsequent injury." The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment. 85A O.S.Supp.2019 § 32(A) (emphasis added). ¶22 Our examination of the language must include the possibility that the term "subsequent" used with both "employer" and "injury" has a consistent and non-contradictory meaning other than the one asserted by the MITF; further, whether this meaning is consistent with legislative intent for 85A O.S.Supp.2019 § 32, and if such meaning would make adjudicating petitioner's constitutional claim unnecessary for the proceeding. Reasons for this include: First, a term is given the same meaning throughout a statute "unless the contrary clearly appears from the whole statute" or "unless there is clear legislative intent to the contrary;"51 and Secondly, meaning of statutory language is construed so that it does not contradict either itself or the constitution, and when the language is part of a public-law regulatory scheme the language is also construed to give effect to the public interests the regulatory scheme serves.52 We must examine legislative intent with a presumption the intent is constitutional and serving the enacted regulatory scheme.53 ¶23 The MITF argues two factors are part of legislative intent. It argues 85A O.S. §32 is to protect employers against a legal responsibility for an employee's disability arising from a combination of new and old injuries so that employer may employ a physically impaired person without fear "of having to pay for disabilities not inflicted" by that employer. The MITF relies upon Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499, and Dean v. Multiple Injury Trust Fund, 2006 OK 78, 145 P.3d 1097. The second factor raised is a legislative intent to decrease the liability of the MITF. The Fund relies upon Ball, Dean, and an opinion by the Court of Civil Appeals.54 ¶24 We stated in Ball, "The Legislature established the Fund in 1943 "to encourage employment of previously impaired workers.'" Ball, 2015 OK 64, ¶ 7, 360 P.3d 499, 502. This was accomplished by insulating "employers from having to pay permanent total disability benefits to a previously impaired worker who suffers an additional work-related injury." Engles v. Multiple Injury Trust Fund, 2018 OK 68, ¶8, 428 P.3d 310, 312. In a context of explaining why our State indemnity fund should not be statutorily liable on the basis of legislative intent in a circumstance of separately adjudicated but simultaneous injuries, we stated that: "simultaneous injuries against the Fund did not further the primary legislative purpose behind the Act, recognized by us for over forty years, to wit: to foster employment or retention of previously impaired individuals." Special Indemnity Fund v. Choate, 1993 OK 15, 847 P.2d 796, 801 (emphasis added).55 ¶25 The MITF's view would create a financial incentive for an employer to minimize future liability by not retaining for employment a worker who had a previously adjudicated injury with the same employer. The MITF's view that historical legislative intent did not encourage a retention of injured employees by a single employer is simply incorrect. Special Indemnity Fund v. Choate, supra. ¶26 The MITF is correct that the Legislature may possess a purpose or intent to decrease the legal liability of the MITF. In Multiple Injury Trust Fund v. Pullum, 2001 OK 115, 37 P.3d 899, 904, we discussed Autry v. Multiple Injury Trust Fund, 2001 OK 79, ¶10, 38 P.3d 213, and explained a statutory amendment that shifted liability for a disability caused by a combination of injuries resulting in PTD to the subsequent employer by statutory language. Pullum, 2001 OK 115, ¶¶12-13, 37 P.3d at 905-06. ¶27 The liability shifting language stated: "The employer shall be liable for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment and for any material increase resulting from the combination of such injuries." Id. 2001 OK 115, ¶12, 37 P.3d at 905 (quoting 85 O.S.Supp.2000 § 172(B)(2) (repealed by Laws 2011, c. 318, § 87)). Language in this former statute, § 172, imposed legal liability on an employer for both the subsequent injury "and for any material increase resulting from the combination of such injuries." This language from section 172 does not appear in 85A O.S. Supp.2019 § 32. In the 2019 version of section 32, when the MITF is liable for PTD the employer's liability is limited: "The employer shall be liable only for the degree of percent of disability which would have resulted from the subsequent injury if there had been no preexisting impairment." 85A O.S.Supp.2019 §32. ¶28 Our Legislature knows how to include clear language in a statute for either shifting liability from an indemnity fund to an employer or creating additional or new liability for an employer. Pullum, supra. There is nothing in the term "subsequent" as an identifying grammatical modifier of "employer" to show a legislative intent that additional liability should be created for an employer. ¶29 There is also nothing in the use or context of "subsequent" to show a decrease in MITF liability based upon the identities of different employers other than referencing the last or most recent employer for the employee when the "subsequent injury" occurred. In Pullum we used language equating a subsequent job-related injury with the last job-related injury, and a subsequent employer with an employer at the time of the last job-related injury. Pullum, 2001 OK 115, ¶13, 37 P.3d at 905-06. ¶30 The term "subsequent" does refer to something following or later than something else.56 However, nothing in our language could be reasonably construed that the last, later, or subsequent employer must be a different employer from the employee's previous employers and "subsequent employer" must be read in isolation from the context of "subsequent injury." The Legislature is presumed to know both the language used in its former statutes and the judicial constructions placed upon the language, such as our use of "subsequent,"57 and the Legislature is presumed to have had in mind the judicial construction of statutory language when using the same language in a later statute involving a similar subject.58 ¶31 The MITF argues it should not be liable for an employee's disability due to injuries incurred while employed by the same employer. The MITF argues its "purpose has never been to stand as a 'prime, original, or substitute obligor,' for the employer. The MITF invokes the history of the indemnity fund for this statement. While the statement is true in one sense, the MITF is incorrect with its application to the current controversy. ¶32 For example, in Special Indem. Fund of State v. Dickinson, 1953 OK 20, 253 P.2d 161, the employee had two claims with two different dates of injury, involving two different areas of his body, right knee and left knee, and both claims were against the same employer. The State Industrial Commission made an award against the Special Indemnity Fund. Because the award lacked specific findings as to the percent of disability required by 85 O.S.1951 § 172,59 the award was reversed for the purpose of the Commission making proper calculations for an award against the Fund. Id. 253 P.2d at 41. ¶33 In Dickinson, the employer's liability was statutorily limited to "the degree or per centum of disability which would have resulted from the later injury if there had been no pre-existing impairment." 51 O.S.1951 § 172.60 This language in the 1951 statute is similar to language in 85A O.S.Supp.2019 §32 limiting an employer's liability to the degree of percent of disability which would have resulted from the employee's most recent injury if there had been no preexisting impairment. In Dickinson the former Special Indemnity fund was liable for the disability created by the combined injuries similar to the MITF's liability for a PTD resulting from combined injuries. The fact that one employer was involved when the employee had successive injuries in Dickinson did not turn the Special Indemnity Fund's liability into standing as a prime, original, or substitute obligor.61 ¶34 The issue whether the Special Indemnity Fund is liable as an original obligor could arise when a proceeding adjudicated whether the employee's most recent injury was by itself sufficient for the degree and type of disability statutorily specified for the Special Indemnity Fund's liability. For example, in Petroleum Maintenance Co. v. Herron, 1949 OK 76, 205 P.2d 182, the employee's most recent injury to his back resulted in a total permanent disability apart from his previous injuries, and "there was no liability on the Special Indemnity Fund."Id. 206 P.2d at 184. A similar result occurred in Ball v. Multiple Injury Trust Fund, 2015 OK 64, 360 P.3d 499, when we explained why an employee with "no prior adjudicated on-the-job injuries" was unsuccessful with seeking to make the MITF liable. ¶35 We explained in Petroleum Maintenance Co., the Fund's statutory liability is derivative in nature and based upon a combination of previous injuries.62 Stricklen is using a combination of previously adjudicated injuries to show a PTD with the MITF possessing a derivative liability. ¶36 Broad language is found in some opinions stating the employer's obligation "to bear full responsibility under the law for disability resulting directly from accidental injury occurring in his employment."63 Our language was used to explain why an employer's liability may not be shifted by an employer to an indemnity fund. This language has not been used to supplant the Legislature's intent and will expressed in an indemnity fund statute. V. Conclusion ¶37 We conclude the language "subsequent employer" in 85A O.S.Supp.2019 § 32 refers to the employer at the time of employee's "subsequent injury" also referenced in 85A O.S.Supp.2019 § 32, which injury is used for the purpose of that statute for a claim against the MITF in accordance with that statute. ¶38 We conclude the MITF's selected meaning for "subsequent" in the phrase "subsequent employer" in 85A O.S.Supp.2019 § 32 is incorrect. This incorrect selected meaning by the MITF was used by the administrative law judge to deny employee's claim against the MITF. The Commission's order affirmed the decision of the administrative law judge and was also based upon this incorrect meaning for a "subsequent employer." ¶39 The Commission's order must be reversed pursuant to 85A O.S. Supp.2019 § 78, because the order is affected by an error of law. The cause is remanded to the Commission for further proceedings on petitioner's claim against the MITF. ¶40 CONCUR: KAUGER, EDMONDSON, COMBS, GURICH, and DARBY, JJ. ¶41 DISSENT: KANE, C.J.; ROWE, V.C.J.; and KUEHN, J. ¶42 NOT VOTING: WINCHESTER, J. FOOTNOTES 1 O.R. at 40, Order Sustaining Motion to Dismiss (June 8, 2022) (Oklahoma Workers' Compensation Commission, administrative law judge). 85A O.S.Supp.2019 § 30(A)(3) stated: "A. For the purposes of Sections 31 through 35 of this title, the term "physically impaired person" means a person who, as a result of accident, disease, birth, military action, or any other cause, has suffered:... 3. Any previous adjudications of compensable permanent partial disability adjudged and determined by the Workers' Compensation Court, the Workers' Compensation Court of Existing Claims or the Workers' Compensation Commission." (Material omitted). 2 O.R. at 37-38, Order Sustaining Motion to Dismiss (June 8, 2022) (Oklahoma Workers' Compensation Commission, administrative law judge). 3 A party aggrieved by the judgment, decision, or award made by the administrative law judge may, within ten (10) days of issuance, appeal to the Workers' Compensation Commission. 85A O.S.2021 § 78(A). Oklahoma Administrative Code, 810:10-1-13 (b) (eff. 8-27-2015) states when the period prescribed or allowed is less than eleven (11) days, then "intermediate legal holidays and any other day when the office of the Clerk of the Commission does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation." 4 O.R. at 94, Order Affirming Decision of the Administrative Law Judge (Sept. 19, 2022). 5 85A O.S.2021 § 78(C) states in part: "The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties." 6 O.R. at 41, Order of Administrative Law Judge (June 89, 2022). 7 MITF Response Brief at 5 (quoting Ball v. MITF, 2015 OK 64, ¶8, 360 P.3d 499). 8 Id. 9 Berkson v. State ex rel. Askins, 2023 OK 70, ¶45, 532 P.3d 36, 53 (citing Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶20, 188 P.3d 177, 184). 10 Vasquez v. Dillard's, Inc., 2016 OK 89, ¶36, 381 P.3d 768, 775; Maxwell v. Sprint PCS, 2016 OK 41, ¶31, 369 P.3d 1079, 1094; Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶12, 5 P.3d 594, 598. 11 Mullendore v. Mercy Hosp. Ardmore, 2019 OK 11, ¶11, 438 P.3d 358, 363 (citing Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768; Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 9, 391 P.3d 111, 115). 12 Mullendore v. Mercy Hosp. Ardmore, 2019 OK 11, ¶ 11, 438 P.3d 358, 363. 85A O.S.Supp.2019 §78 (C) states in part: "The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was:...4. Affected by other error of law." 13 85A O.S.Supp.2019 § 78(C)(4). 14 Keota Mills & Elevator v. Gamble, 2010 OK 12, ¶19, 243 P.3d 1156, 1162 (appellate court possesses "power to identify and apply the proper construction of the governing law"); MITF v. Sugg, 2015 OK 78, ¶5, 362 P.3d 222, 224 ("Statutory construction presents a question of law and lower court rulings in this regard are reviewed de novo."); cf. Farley v. City of Claremore, 2020 OK 30, ¶18, 465 P.3d 1213, 1224-25 (A party's assigned meaning of a workers' compensation statute when rejected by a District Court's judgment presented an error of law for de novo appellate review). 15 Shepard v. Okla. Dept. of Corrections, 2015 OK 8, ¶18, n.27, 345 P.3d 377, 383-384 (statute created by an exercise of a police power is not controlled by parties' agreement made after the statute was enacted) (citing Edmondson v. Pearce, 2004 OK 23, ¶¶ 28--29, 91 P.3d 605, 621--622, cert. denied sub nom. Tally v. Edmondson, 543 U.S. 987, 125 S. Ct. 495, 160 L. Ed. 2d 371 (2004)); cf. 85A O.S. 2021 § 8(A) ("No agreement by an employee to waive his or her right to compensation shall be valid. No contract, regulation, or device shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act, except as specifically provided in this act."). 16 Stidham v. Special Indem. Fund, 2000 OK 33, n.20, 10 P.3d 880, 886 ("All portions of the Special Indemnity Fund Act that affect the outer limit of the Fund's statutory liability stand construed as a restraint on the Workers' Compensation Court's jurisdictional power."). 17 The MITF is a statutory fund within the dominion and control of the Legislature. 85A O.S.Supp.2019 § 31 (as amended); Tulsa Stockyards, Inc. v. Clark, 2014 OK 14, ¶20, 321 P.3d 185, 193 (former State Insurance Fund with authority to administer the MITF was within legislative dominion and control); Fehring v. State Ins. Fund, 2001 OK 11, ¶¶10-22, ¶18, 19 P.3d 276, 279-282, 281 (overruled on other and limited ground, Gowens v. Barstow, 2015 OK 85, ¶43, 364 P.3d 644, 658); State ex rel. State Ins. Fund v. JOA, Inc., 2003 OK 82, ¶¶21-25, 78 P.3d 534, 540-41 (SIF could not waive or by agreement alter the scope of its statutory functions and authority, unless when statutorily allowed and not prohibited by mandatory law). Similarly, the parties may not by agreement enlarge or diminish the statutory boundaries for the MITF's liability unless agreement is statutorily authorized and not prohibited by mandatory law. 18 Red Rock Mental Health v. Roberts, 1996 OK 117, 940 P.2d 486, 491 (jurisdiction of Workers' Compensation Court may not be granted by agreement); Hardy Sanitarium v. DeHart, 1933 OK 337, 22 P.2d 379, 381 (jurisdiction of the State Industrial Commission could not be conferred by agreement); cf. Mahan v. NTC of America, 1992 OK 8, 832 P.2d 805, 807-08 (Opala, J., concurring) (employment status is a jurisdictional question "originally rooted in federal constitutional pronouncements"). 19 See, e.g., 85A O.S.Supp.2019 §§ 87, 115 (settlement of claim and joint petition for settlement). 20 Stidham v. Special Indem. Fund, 2000 OK 33, n.26, 10 P.3d 880, 887 (in a public law controversy we are not required to address issues the parties fail to address); State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶12, 66 P.3d 432, 439 (Court does not resolve a constitutional issue in advance of strict necessity); Burdick v. Indept. Schl. Dist. No. 52 of Okla. Cty., 1985 OK 49, n.10, 702 P.2d 48, 54 (A sua sponte analysis need only address what is dispositive for the issue pressed for review.); cf. Dutton v. City of Midwest City, 2015 OK 51, n.71, 353 P.3d 532, 548 (writ may not issue to resolve a question publici juris when an alternative adequate remedy exists). 21 See discussion in "IV. Petitioner's Claim." 22 Boston v. Buchanan, 2003 OK 114, ¶ 6, 89 P.3d 1034, 1038. 23 In re Guardianship of Stanfield, 2012 OK 8, n.52, 276 P.3d 989, 1001. 24 Benning v. Pennwell Pub. Co., 1994 OK 113, n.20, 885 P.2d 652, 656 (citing Reynolds v. Special Indemn. Fund, 1986 OK 64, 725 P.2d 1265, 1270 (in a public-law controversy, if the aggrieved party advances the wrong theory or reason for reversal, the reviewing court is free to grant corrective relief on any applicable theory chosen sua sponte when the theory is legally invocable to correct a pressed decisional error manifested by the record on appeal and dispositive of the public-law controversy); Beville v. Curry, 2001 OK 1, ¶11, 39 P.3d 754, 759 (A public policy issue presented by parties' statutory construction may be addressed by a legal analysis not presented by the parties but supported by the record.). 25 In re T. H., 2015 OK 26, ¶ 9, 348 P.3d 1089, 1092 ("The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of a statute."); Rogers v. Quiktrip Corp., 2010 OK 3, 11, 230 P.3d 853, 859 ("The fundamental rule of statutory construction is to ascertain and give effect to legislative intent."); State ex rel. Oklahoma Dept. of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877--78 ("Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language."); In re Abrams' Will, 1938 OK 162, 77 P.2d 101, 103 (court has a duty to ascertain and enforce the legislative intent). 26 Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219. 27 Strack, Trustee of Patricia Ann Strack, etc. v. Continental Resources, Inc., 2021 OK 21, ¶18, 507 P.3d 609, 616. 28 Matter of Protest of Raytheon Co. and Subsidiaries, 2022 OK 32, ¶9, 512 P.3d 333, 337 (citing Kohler v. Chambers, 2019 OK 2, ¶ 6, 435 P.3d 109, 111). 29 Barnett v. Okay Pub. Works Auth., 2022 OK 24; ¶13, 507 P.3d 1245, 1248 (citing In re Petition No. 397, State Question No. 767, 2014 OK 23, ¶9, 326 P.3d 496, 501 ("consistent with a court's construction of alleged ambiguity in a contract, a judicial determination of the presence of more than one reasonable construction of the statutory language, i.e., ambiguity, presents a question of law")). 30 Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47, ¶6, 186 P.3d 952, 954 ("The construction of an ambiguous statute presents an issue of law. As such, it is reviewed de novo."). 31 Humphries v. Lewis, 2003 OK 12, ¶7, 67 P.3d 333, 335 ("Where the language of a statute is clear and unambiguous, the language will be given its plain meaning."). 32 Toch, LLC v. City of Tulsa, 2020 OK 81, ¶25, 474 P.3d 859, 867 (Court examined the use of a disjunctive term, its ordinary meaning, and the potential for when "context dictates otherwise."). 33 Young v. Station 27, Inc., 2017 OK 68, ¶ 18, 404 P.3d 829, 838. 34 Mustain v. Grand River Dam Authority, 2003 OK 43, n.44, 68 P.3d 991, 999 (citing Culbertson v. McCann, 1983 OK 57, ¶14, 664 P.2d 388, 391(citing DeGraffenreid v. Iowa Land and Trust Co., 2908 OK 49, 95 P. 624, 639)); Black's Law Dictionary 794 (7th ed.1999) (in pari materia meaning "upon the same matter," for the principle that statutes are construed together so that inconsistencies in one may be resolved by examining another statute on the same subject matter). 35 Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright, 2021 OK 7, n.37, 481 P.3d 883, 894 (citing Rogers v. Quiktrip, 2010 OK 3, ¶ 13, 230 P.3d 853, 860 (when examining whether an irreconcilable conflict was present in then current statutory language the Court explained the purpose of an enactment created by the legislature in 1933). 36 Assessments for Tax Year 2012 etc., supra note 35 at 2021 OK 7, n.37, 481 P.3d at 894 (citing Berry v. State ex rel. Okla. Pub. Emps. Ret. Sys., 1989 OK 14, 768 P.2d 898, 899 (any doubt as to the meaning of a statute may be resolved by reference to its history) (citing Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289, 1292)). 37 Assessments for Tax Year 2012, etc., supra note 35 at 2021 OK 7, n.38, 481 P.3d at 895 (citing In re Guardianship of Stanfield, 2012 OK 8, ¶¶ 12-20, 276 P.3d 989, 994-999 (discussion of 1924 legislation in the context of then contemporary court opinions, and how this authority related to application of current statutes which included subsequent codification of the 1924 legislation)). 38 Assessments for Tax Year 2012 etc., supra note 35 at 2021 OK 7, ¶24, 481 P.3d 883, 895. 39 Matter of Protest of Raytheon Co. note 28 supra. 40 Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶10, 391 P.3d 111, 115; see also Schlumberger Tech. Corp. v. Paredes, 2023 OK 42, ¶3, 528 P.3d 772, 774 (statutory interpretation of workers' compensation statute presents a question of law which receives a de novo review by the Court). 41 Smith v. Westinghouse Elec. Corp., 1987 OK 3, n.3, 732 P.2d 466, 467 ("The judiciary will not decide constitutional issues in advance of strict necessity. When, as here, the legal relief sought clearly is affordable upon alternative grounds, consideration of constitutional infirmities is deemed precluded by a self-erected 'prudential bar' of restraint."); Board of County Comm'rs v. Lowery, 2006 OK 31, ¶ 14, 136 P.3d 639, 649 (when legal relief is available on alternative non-constitutional grounds, the Court usually avoids reaching a determination on the constitutional issue unless circumstances require additional analysis, e.g., when a statutory issue is necessarily intertwined with a constitutional issue); Brown v. Claims Management Resources Inc., 2017 OK 13, ¶ 27, 391 P.3d 111, 119-120 ("Because relief is available on alternative grounds, we need not reach the constitutional issues presented."). 42 Reynolds v. Special Indem. Fund, 2000 OK 33, n.26, 10 P.3d 880, 887. 43 Pine v. State Indus. Com'n, 1925 OK 287, 235 P. 617, 619; cf. United States v. Davis, 588 U.S. ___, n.6, 139 S. Ct. 2319, n.6, 204 L. Ed. 2d 757 (2019), (citing Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 448--49, 7 L. Ed. 732 (1830) (Story, J.), and Rust v. Sullivan, 500 U.S. 173, 190--191, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991) (the Davis Court described two canons of construction: A presumption of constitutionality with interpreting ambiguous language to avoid rendering a statute unconstitutional, and a second view that courts should construe ambiguous language "to avoid the need even to address serious questions" about the constitutionality of statutory language.)). 44 Matter of Estate of Foresee, 2020 OK 88, ¶14, 475 P.3d 862, 867. 45 Ghoussoub v. Yammine, 2022 OK 64, ¶18, 518 P.3d 110, 114; S.K.W. v. State, 2022 OK 39, ¶15, 508 P.3d 449, 455. 46 Trapp v. Dykes, 1929 OK 520, 282 P. 882, 884 (material omitted). 47 See, e.g., State v. Shaw, 9 S.C. (Richardson) 94, 115 (1878) (citing F. Dwarris, A General Treatise on Statutes, 193 [(P. Potter ed. 1871)] "The intent of the Legislature is not to be collected from any particular expression, but from a general view of the whole of an Act of Parliament."); Bull v. Read, 54 Va. (13 Gratt.) 78, 84 (1855) ("Nor is the intent to be ascertained from a particular expression, but from the whole act."), Ramsey v. Leeper, 1933 OK 661, 31 P.2d 852, 869 (McNeill, J., specially concurring) (framers of law "do not weigh only the force of single words") (quoting State v. Lowry, 166 Ind. 372, 77 N.E. 728, 734, 4 L. R. A. (N. S.) 528, 9 Ann. Cas. 350 (1906) and Potter's Dwarris on Statutes, 196); Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law, 225 (2d ed. 1874, Fred B. Rothman & Co. reprint 1980) (same) (citing State ex rel. Harper vs. Judge, 12 La.Ann. 777 (1857); State ex rel. Wilcox v. Weigle, 48 Mo. 29 (1871)). 48 Ghoussoub v. Yammine, 2022 OK 64, ¶19, 518 P.3d 110, 114-115 (citing McNeill v. City of Tulsa, 1998 OK 2, ¶ 9, 953 P.2d 329, 332; and quoting In re Estate of Little Bear, 1995 OK 134, ¶ 22, 909 P.2d 42, 50). 49 Taylor v. State Farm Fire & Cas. Co., 1999 OK 44, ¶ 19, 981 P.2d 1253, 1261; see also Black's Law Dictionary 1270 (4th ed. 1951) (pari materia, "Lat. Of the same matter; on the same subject; as, laws pari materia must be construed with reference to each other."); Cowart v. Piper Aircraft Corp., 1983 OK 66, ¶ 5, 665 P.2d 315, 317 (constitutional provisions and statutes on the same subject should be construed in pari materia with each other as part of a coherent system) (citing Poafpybitty v. Skelly Oil Co., 1964 OK 162, 394 P.2d 515). 50 Shepard v. Okla. Dep't of Corr., 2015 OK 8, ¶15, 345 P.3d 377, 383. 51 Boyd v. U.S. ex rel. U.S. Army Corps of Engineers, 1992 OK 51, 830 P.2d 577, 580; Walton v. Donnelly, Com'r of Finance and Accounting, 1921 OK 258, ¶ 0, 201 P. 367 (Court Syllabus). 52 Young v. Station 27, Inc., 2017 OK 68, ¶¶18-20, 404 P.3d 829, 838-840. 53 Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, ¶44, 305 P.3d 1004, 1020 ("In Oklahoma legislative enactments are presumed constitutional."). 54 City of Edmond v. Vernon, 2009 OK CIV APP 36, 210 P.3d 860 (released for publication by order of the Court of Civil Appeals). 55 See also, Special Indemn. Fund v. Archer, 1993 OK 14, 847 P.2d 791, 794 ("As appears obvious to us allowance of recovery against the Fund for simultaneous injuries,...those injuries occurring at the same time, does not further the purpose of either employment or retention of previously impaired workers.") (material omitted and emphasis added). 56 See, e.g., Black's Law Dictionary 1596 (4th ed. 1951) (subsequent, "following in time; coming or being later than something else; succeeding"). 57 State ex rel. Bd. of Tax Roll Corr. of Tulsa Cty. v. Mack Truck Sales of Tulsa, Inc., 1980 OK 178, 620 P.2d 388, 391. 58 Leo v. Oklahoma Water Resources Bd., 2023 OK 96, ¶20, 536 P.3d 939, 947 (quoting Prettyman v. Halliburton Co., 1992 OK 63, ¶ 21, 841 P.2d 573, 580 ("When ascertaining legislative intent the Court must presume that when adopting the amendment, the legislature had knowledge of the law as it previously existed and had in mind the judicial construction which had been placed on that law.")). 59 51 O.S.1951 § 172, included in part: "If such combined disabilities constitute a permanent total disability, as now defined by the Workmen's Compensation Laws of this State, then such employee shall receive one hundred (100%) per centum of the compensation...If such combined disabilities constitute only a partial permanent disability,... then such employee shall receive full compensation as now provided by law for the disability resulting directly and specifically from such subsequent injury, and in addition thereto such employee shall receive full compensation for his combined disability as above defined, after deducting therefrom the per centum of that disability,...an employer shall be liable only for the degree or per centum of disability which would have resulted from the later injury if there had been no pre-existing impairment." (Material omitted). An award against the former Fund involving permanent partial disability and permanent total disability, and application of 52 O.S.1951 § 172 is discussed in Special Indem. Fund v. Wilson, 1959 OK 236, 348 P.2d 1072, 1074-75. Dissolution of the Fund and later reinstatement of MITF liability for a combination of disabilities related to permanent total disability is discussed in Ball v. MITF, 2015 OK 64, ¶¶11-13, 360 P.3d 499, 504-05. 60 51 O.S.1951 § 172 supra note 59. 61 See, e.g., MITF v. McCauley, 2015 OK 84, ¶¶1-2, 6, 374 P.3d 773, 774-775 (although the issue of a single employer was not addressed, the Court affirmed an award against the MITF in a circumstance of three separate claims against the same employer). 62 See, e.g., Levi v. Special Indem. Fund, 1964 OK 32, 389 P.2d 620, 622 (Liability of the Special Indemnity Fund is considered "purely derivative," and "deduced from the anterior obligation of the employer;" the "liability does not attach unless and until the extent of the primary obligation, which is sought to be supplemented, stands judicially established by an award against the employer."). 63 Petroleum Maintenance Co. v. Herron, 1949 OK 76, 205 P.2d 182, 184.

786b660b-22d2-44fa-95b5-f3ebf5e910d6

JACKSON COUNTY EMERGENCY MEDICAL SERVICE DISTRICT v. KIRKLAND

oklahoma

Oklahoma Supreme Court

JACKSON COUNTY EMERGENCY MEDICAL SERVICE DISTRICT v. KIRKLAND2024 OK 4Case Number: 121510Decided: 02/13/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. JACKSON COUNTY EMERGENCY MEDICAL SERVICE DISTRICT, and DORA HANDCOCK, Petitioners,v.THE HONORABLE KORY S. KIRKLAND, JUDGE OF THE DISTRICT COURT FOR GRADY COUNTY, STATE OF OKLAHOMA, Respondent, COMPSOURCE MUTUAL INSURANCE COMPANY, Intervenor. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF PROHIBITION Honorable Kory S. Kirkland, Trial Judge ¶0 After an ambulance collided with a turnpike tollbooth, the injured toll-worker filed a lawsuit against the ambulance driver and her employer, the Jackson County Emergency Medical Services District. The medical district sought to dismiss the lawsuit. It argued that it was entitled to governmental immunity, and that the Governmental Tort Claims Act, 51 O.S. 2021 §155(14) applied to prohibit recovery because the toll-worker had recovered workers compensation benefits. The trial court denied the dismissal. The medical district filed an Application to Assume Original Jurisdiction and Petition for Writ of Prohibition in this Court to prevent the trial court from proceeding further. We assume original jurisdiction and grant the writ of prohibition by opinion. We hold that: 1) pursuant to the Okla. Const. art. 10, §9C, although the medical district is a unique entity, it is subject to lawsuits through its board of trustees to the same extent as any Oklahoma municipality or county; and 2) the Governmental Tort Claims Act, 51 O.S. 2021 §§155(14) et seq., is applicable to preclude recovery. ORIGINAL JURISDICTION ASSUMED;PETITION FOR WRIT OF PROHIBITION GRANTED. Graydon D. Luthey, Jr., Steven J. Adams, Tulsa, Oklahoma, for Petitioners. Michael S. McMillin, Oklahoma City, Oklahoma, for Petitioner, JCEMSD. Adam W. Christensen, Oklahoma City, Oklahoma, for Intervenor, Compsource Insurance Co. Kevin E. Hill, Oklahoma City, Oklahoma, for Real Party in Interest, Shannon Garst. KAUGER, J.: ¶1 The issues presented are whether: 1) the Jackson County Emergency Medical Services District (JCEMSD/medical district) or its Board of Trustees is the proper party to be named and subjected to suit when a lawsuit is brought against the medical district; and 2) if Governmental Tort Claims Act, 51 O.S. 2021 §155(14)1 applies to this cause to preclude recovery. ¶2 The Okla. Const. art. 10, §9C creates medical districts to be run by a board of trustees, which are subject to the same liability as municipalities or counties.2 In this cause, the plaintiff sought a determination from the trial court that medical districts and their board of trustees were two separate entities, subject to differing standards and limits of liability. They would have medical districts treated as ordinary private corporate entities, even if their boards of trustees were governmental entities. We disagree. Pursuant to the Okla. Const. art. 10 §9C, medical districts and their board of trustees are not separate entities. We hold that: 1) although the medical district is a unique entity, it is subject to lawsuits through its board of trustees to the same extent as any Oklahoma municipality or county; and 2) the Oklahoma Governmental Tort Claims Act, 51 O.S. 2021 §§155(14) is applicable to preclude recovery.3 FACTS ¶3 American Staff Corporation employed the real party in interest, Shannon Garst (Garst/tollbooth operator), to work as a tollbooth operator at the Newcastle, Oklahoma, tollboth on I-44 (H.E. Bailey Turnpike). The petitioner, JCEMSD, employed the petitioner, Dora Handcock (Handcock/ambulance driver), to drive an ambulance. On June 12, 2020, Handcock, while transporting a patient from Jackson County Memorial Hospital in Altus, Oklahoma, to a hospital in Oklahoma City, Oklahoma, crashed into the tollbooth at excessive speed, injuring the tollbooth operator. ¶4 On June 19, 2020, the tollbooth operator filed a notice of claim to the Workers' Compensation Commission for cumulative trauma resulting from the accident. Pursuant to the notice requirements of the Oklahoma Governmental Torts Claims Act, 51 O.S. 2021 §156 (GTCA), she also filed a notice of tort claim with the JCEMSD, out of an abundance of caution.4 The notice is dated April 12, 2021, and it is addressed to the JCEMSD at its administrative office, in care of Board of Trustee member Dorothy Butler. ¶5 On November 22, 2021, Garst filed a lawsuit in the District Court of Grady County against the JCEMSD and the ambulance driver. She sought damages for Handcock's alleged negligent and reckless driving, and against JCEMSD as Handcock's employer. On March 24, 2022, the trial court allowed intervention by CompSource Mutual Insurance Company (CompSource). CompSource sought reimbursement for paying workers compensation benefits to Garst.5 ¶6 On October 19, 2022, the ambulance driver and JCEMSD filed a Motion for Summary Judgment. They argued that the JCEMSD was entitled to immunity pursuant to the GTCA, 51 O.S. 2021 §§155(14),6 and that the GTCA precluded the ambulance driver from being sued in an individual capacity. On November 30, 2022, Garst responded to the Motion for Summary Judgment, arguing that case law, and Oklahoma Attorney General Opinions, indicate that medical districts such as the JCEMSD, are not governmental entities under Oklahoma law because they are: 1) not a state, county, county hospital, city, town or public or private trust of a city or town; 2) a hybrid type of entity, and as such, are not entitled to governmental tort immunity; and 3) not covered by any county insurance policy, and not represented by the county attorney, but instead, have private insurance and a private attorney. ¶7 The trial court held a hearing on the summary judgment motion on January 12, 2023. It denied JCEMSD and Handcock's Motion for Summary Judgment.7 The ruling states: The Court finds that Jackson County Emergency Medical Service District is not an entity that is entitled to Immunity under the Governmental Tort Claims Act 51 O.S. 151, et seq. The Court finds that if the government is going to compete with the private sector and the government is going to engage in the same type of liability in commerce as everyone else in that field and everyone else on the roads, it only stands to reason that they be held to the same standard, absent some specific provision of the law. The Governmental Tort Claims Act does not provide immunity to the defendants and the Governmental Tort Claims Act does not apply to Defendants JCEMSD and Dora Handcock. ¶8 On January 27, 2003, JCEMSD and Handcock filed a Motion to Substitute Parties and to Reconsider the Application of the GTCA. They sought dismissal substitution of the defendant JCEMSD for the Board of Trustees of the JCEMSD. Even though they concede that they the JCEMSD and its Board are one and the same party, regardless of what name they are sued under, they argued that only the Board of Trustees had the capacity to sue and be sued, making the JCEMSD immune from suit under the GTCA. Alternatively, they also reasserted that if the trial court found that the Board did not have to be named, the JCEMSD is provided immunity by the GTCA. ¶9 Garst provides several examples where the JCEMSD, not the Board of Trustees, was used as the name of the organization in several lawsuits and settlements. She argues that it operates under the name JCEMSD for bills and services, and is the properly named party. After an April 13, 2023, hearing, the trial denied the JCEMSD and Handcock's Motion to Substitute and reconsideration of the application of the GTCA. ¶10 On August 9, 2023, the JCEMSD filed an Application to Assume Original Jurisdiction and Petition for Writ of Prohibition in this Court. It argued that: 1) the JCEMSD is an entity of Jackson County, formed under the Oklahoma Constitution, and it cannot be sued; 2) the JCEMSD Board of Trustees, which has the capacity to be sued, is protected by sovereign immunity; 3) if either the JCEMSD or its Board of Trustees are determined to be amenable to suit, the Governmental Tort Claims Act, 51 O.S. 2021 §155(14) applies and precludes recovery because benefits under the Workers' Compensation Act were previously received by Garst. ¶11 The Medical District sought an order of substitution to have the JCEMSD Board substituted for the Medical District, and a Writ of Prohibition from this Court to prevent any further proceedings in the trial court. We assumed original jurisdiction to address the first impression issues by opinion.8 I. PURSUANT TO THE Okla. Const. art. 10 §9C, ALTHOUGH THE MEDICAL DISTRICT IS A UNIQUE ENTITY, IT IS SUBJECT TO LAWSUITS THROUGH ITS BOARD OF TRUSTEES. ¶12 The JCEMSD argues that, regardless of whether it or its board is the properly named party in a lawsuit, both are cloaked with governmental immunity under the facts of this cause. The real party in interest argues that the district, itself, is not cloaked with governmental immunity. She suggests that "the district" and its "Board of Trustees" are two separate entities with differing immunity attachments. A. JCEMSD Governance. ¶13 In 1976, Oklahoma voters approved State Question 522, which amended article 10 of the Oklahoma Constitution by adding section 9C, relating to emergency medial service districts.9 The provision allowed a special election to be called by boards of county commissioners, or voters in counties, to create a district for the purpose of support, organization, operation, and maintenance of ambulance services.10 ¶14 The districts are governed/operated by a board of trustees.11 Regarding the capacity to sue and be sued, art. 10, §9C provides: (o) The board of any district shall have capacity to sue and be sued. Provided, however, the board shall enjoy immunity from civil suit for actions or omissions arising from the operation of the district, so long as, and to the same extent as, municipalities and counties within the state enjoy such immunity. (Emphasis supplied.) ¶15 On August 24, 1982, the voters of Jackson County voted to approve the creation of the JCEMSD to provide medical services for Jackson County residents. The JCEMSD is governed by a board of trustees appointed by the Jackson County Board of County Commissioners. According to the JCEMSD By-Laws, the board of trustees' administrative office is located at 1309 N. Park Lane, Altus, Oklahoma. The board holds regular monthly meetings which are open to the public and governed by the Oklahoma Open Meeting Act, 25 O.S. 2021 §§301 et seq.12 ¶16 Jackson County levies ad valorem taxes designated to JCEMSD for its operation and support. However, Jackson County does not insure the JCEMSD as part of the Association of County Commissioners Oklahoma self-insured group because it does not consider the JCEMSD a governmental entity or part of the county. Rather, the JCEMSD secures private insurance. ¶17 The JCEMSD also follows the Emergency Medical Service District Budget Act, 19 O.S. 2021 §§1701 et seq.13 to provide an accounting to the public.14 The Oklahoma State Auditor and Inspector publishes a statutory audit report regarding JCEMSD each fiscal year.15 The Oklahoma Department of Health licenses the JCEMSD to conduct and maintain an ambulance service. B. The Nature of Such Entities. ¶18 The nature of entities like the medical district has long been discussed by this Court as well as the Oklahoma Attorney General. For instance, the Court in Board of County Commissioners of Lincoln County v. Robertson, 1913 OK 164, ¶7, 130 P. 947, held that a board of county commissioners acting as commissioners for a drainage district had the authority to hire attorneys, and that the county attorney was not responsible for such representation. The Court noted that a drainage district is a separate, independent, and distinct entity from the county. It was not brought into existence or created for the purpose of either the county, township, or any other species of municipal government. ¶19 In 1948, the Court in Armstrong v. Sewer Improvement Dist. No. 1, 1948 OK 198, ¶4, 199 P.2d 1012 held that sewer improvement districts were not organized for political or governmental purposes and do not possess political or governmental powers other than those necessary to carry out the specific purposes for which they are created. They were in no sense additions to, or agencies in aid of the general government of the state, or in aid of any governmental agencies or functions, but were purely for the purpose of promoting the welfare and benefit of the inhabitants of that particular district. ¶20 In 1977, the Oklahoma State Attorney General issued an opinion in 1977 OK AG 208. In it, the Attorney General, relying on Robertson, supra, determined a district attorney could not represent the board of trustees of an emergency medical services district because there was nothing to indicate that the district, the board, or its members were county officers. The Attorney General determined that medical districts were separate, independent, and distinct entities from the county and were not brought into existence or created for the purpose of either the county, township, or any other species of municipal government. ¶21 Similarly, in 1983 OK AG 154, the State Attorney General made four determinations regarding medical districts. First, they were required to establish a fiscal year beginning on July 1, of each year. Second, the medical district board of trustees were subject to state nepotism laws. Third, their meetings must comply with the Open Meetings Act. Fourth, their employees were not employees of the county, but rather were employees of the district. ¶22 The next year, in 1984 OK AG 149, the Attorney General addressedwhether medical districts were eligible employers, for purposes of the Oklahoma Public Employees Retirement Act.16 In other words, was a medical district a governmental entity, like the state, a county, city, or town? The Attorney General determined that they were not the equivalent of such entities. The Attorney General relied on Armstrong, supra to determine that emergency medical districts were not political corporations or other subdivisions of the state under constitutional limitations of indebtedness. ¶23 Finally, in 2002 OK AG 4, the Attorney General determined that a medical district's board had the power and authority to employ legal counsel to represent it. The express language of the Oklahoma Constitution, our prior opinions, the Attorney General's prior reviews, along with the facts relating to the structure and operation of the medical district, are all persuasive in this cause. ¶24 Clearly, the medical districts, which are authorized to be created by the Okla. Const. art. 10 §9C, are a unique entity with both non-governmental and quasi-governmental aspects. They are not governed by any typical governmental entity such as the state, the county, or a municipality, or created to be run by such. Rather, they are governed solely by a board of trustees, which is also created through the provisions of art. 10, §9C. There is no indication within the constitutional provision that "the district" and "the board of trustees" are completely separate entities and subject to differing liability laws. Instead, they are treated as one in the same, and with the board of trustees as officers and governing "the districts." ¶25 Regardless of how they are categorized, insofar as legal liability goes, the Constitution is quite clear. The Okla. Const. art. 10, §9C expressly provides in pertinent part: "the board shall enjoy immunity from civil suit for actions or omissions arising from the operation of the district, so long as, and to the same extent as, municipalities and counties within the state enjoy such immunity." (Emphasis supplied.) When the district is amenable to a lawsuit, the expressed entity to be sued is the medical district board of trustees, as its governing body. Because the two bodies are not distinctly created entities which can be separated from each other, the "board of trustees" should have been substituted for "the district" as the defendant in these proceedings. ¶26 The medical district, vis-a-vis the board of trustees, is subject to immunity from liability the same extent as municipalities and counties within the state enjoy such immunity. Consequently, any laws which govern the legal liability limits of municipalities and counties also generally apply to such medical districts, unless there are express provisions to the contrary. II. THE OKLAHOMA GOVERNMENTAL TORT CLAIMS ACT, 51 O.S. 2021 §§151 et seq. IS APPLICABLE TO PRECLUDE RECOVERY. ¶27 The medical district argues that the GTCA applies, and that it cannot be held liable in this cause because workers compensation benefits have been previously awarded. The real party in interest argues that because the medical district is not a governmental entity, the GTCA is inapplicable. ¶28 In enacting the GTCA in 1984, the Oklahoma Legislature expressly adopted the doctrine of sovereign immunity, freeing the state and its political subdivisions and their employees acting within the scope of their employment, from liability for torts.17 However, the Legislature also waived sovereign immunity by extending governmental accountability to all torts for which a private person or entity would be liable subject only to the act's specific limitations and exceptions.18 In waiving sovereign immunity, the Legislature restricted the waiver to the extent and manner prescribed in the act.19 ¶29 The act applies to and governs liability of municipalities and counties.20 Ordinarily, a non-governmental entity or quasi-governmental entity might not be governed by the GTCA. For example, in Sullin v. American Medical Response of Oklahoma, Inc., 2001 OK 20, 23 P.3d 259, we addressed the applicability of the GTCA to a private entity who contracted for services with a public trust. In Sullin, we said: ¶20 A private entity such as AMR is not an 'entity designated to act in behalf of the state or a political subdivision' merely because it contracts with a public trust to provide services which the public trust is authorized to provide. Notwithstanding the fact that it may be providing a public service, a private entity such as AMR does not act in the administration of government. It is not charged by law with the responsibility of conducting any public business. It is organized by private citizens pursuant to general corporate laws. It is not controlled by or answerable to the public, but is governed by its own board of directors. Its employees are not governmental employees. Except as it has voluntarily obligated itself by contract, it is not required to provide services or remain in existence. In summary, it possesses all the attributes of a private business enterprise, a non-governmental entity. ¶30 The entity in Sullins was not a medical district like the one here. On its face, it appears to have some of the same characteristics. For example, the medical district here provides a public service, but it does not act in the administration of government. It is not charged by law with the responsibility of conducting any public business. It is organized by and through private citizen voters. It is governed by its own board of directors. Its employees are not governmental employees. There is, however, one significant and determinative difference. ¶31 The GTCA currently includes a number of districts within the definition of political subdivision to which the GTCA applies.21 It neither expressly includes or excludes its application to medical districts such as the JCEMSD. Nevertheless, as we previously stated, the Oklahoma Constitution, art. 10 §9 expressly applies all liability laws which govern municipalities and counties the same extent to medical districts. We cannot ignore the express constitutional language. Consequently, the GTCA governs their liability the same as it governs the liability of municipalities and counties. ¶32 In this regard, the GTCA provides in 51 O.S. 2021 §155 that: The state or a political subdivision shall not be liable if a loss or claim results from: . . . 14. Any loss to any person covered by any workers' compensation act or any employer's liability act; This Court has, in three previous opinions, unanimously interpreted this section to mean that if a loss is covered by workers compensation, the state or political subdivision is precluded from liability. For example, in Childs v. State ex rel. Oklahoma State University, 1993 OK 18, ¶1, 848 P.2d 571, we answered the question of whether subsection 14s immunity extended to include its liability to persons not employed by the State of Oklahoma, but were covered for the injurious event by the workers' compensation regime of another state. ¶33 Childs concerned two Texas residents whose vehicle collided with a vehicle owned and operated by a State of Oklahoma employee. The Texans were in Oklahoma, in the course of employment with a private employer. One was injured and one was killed. The injured Texan and the deceased Texan's widow received workers compensation benefits from Texas. We held that subsection 14 applied to any loss to any person covered by any workers' compensation act or any employer's liability act. Consequently, the State of Oklahoma was immune from liability. ¶34 In Smith v. State ex rel. Deptartment of Transportation, 1994 OK 61, 875 P.2d 1147, the plaintiff was killed when he lost control of a tractor-trailer while driving on a state highway. His widow recovered workers' compensation wrongful death benefits and then attempted to sue the State for unsafe highway conditions. We held that subsection 14 grants the State immunity from liability. Finally, in Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶4, 66 P.3d 442, the decedent was killed when struck by a school bus driven by an employee of a school district. The deceased's widow received statutory worker's compensation death benefits from the decedent's employer. The Court reaffirmed that the widow was precluded from bringing a lawsuit against the school district pursuant to subsection 14 of §155 of the GTCA. ¶35 Additionally, in Farley v. City of Claremore, 2020 OK 30, 465 P.3d 1213, after a city fireman died while reponding to an emergency request, his widow brought a wrongful death lawsuit against the City of Claremore. The Court held that the city was immune from liability pursuant to the GTCA §155(14) because the same wrongful death injury was the basis of an award for death benefits made by the workers compensation commission. ¶36 Here, it is undisputed that workers compensation benefits have been paid as a result of this accident. The trial court should have dismissed the lawsuit and abstained from proceeding any further in this cause. Consequently, we assume original jurisdiction and grant the petitioners' request for a writ of prohibition. CONCLUSION ¶37 The medical districts, created by the Okla. Const. art. 10 §9C, are a unique entity governed solely by a board of trustees, which is also created through the provisions of art. 10, §9C. The "district" and "board of trustees" are treated as one and the same, with the board of trustees as officers and governing "the districts." The Okla. Const. art. 10, §9C provides that the board is immune from civil suit for actions or omissions arising from the operation of the district, so long as, and to the same extent as, municipalities and counties within the state enjoy such immunity. ¶38 When the district is amenable to a lawsuit, the expressed entity to be sued is the medical district board of trustees, as its governing body. Because the medical district, vis-a-vis the board of trustees, is subject to liability to the same extent as municipalities and counties within the state enjoy such immunity, the GTCA governs the legal liability limits of such medical districts, unless there are express provisions to the contrary. Pursuant to the GTCA, this lawsuit is precluded because workers compensation benefits have previously been awarded. ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF PROHIBITION GRANTED. ALL JUSTICES CONCUR. FOOTNOTES 1 Title 51 O.S. 2021 §155(14) provides in pertinent part: The state or a political subdivision shall not be liable if a loss or claim results from: . . . 14. Any loss to any person covered by any workers' compensation act or any employer's liability act; . . . Because the pertinent portions of the GTCA have insignificant changes by amendment, all references are to the current version of the Act. 2 The Okla. Const. art 10, §9C, see note 10, infra. 3 Title 51 O.S. 2021 §155(14), see note 1, supra. 4 Title 51 O.S. 2021 §156 provides in pertinent part: A. Any person having a claim against the state or a political subdivision within the scope of Section 151 et seq. of this title shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages. B. Except as provided in subsection H of this section, and not withstanding any other provision of law, claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs. C. A claim against the state shall be in writing and filed with the Office of the Risk Management Administrator of the Office of Management and Enterprise Services who shall immediately notify the Attorney General and the agency concerned and conduct a diligent investigation of the validity of the claim within the time specified for approval or denial of claims by Section 157 of this title. A claim may be filed by certified mail with return receipt requested. A claim which is mailed shall be considered filed upon receipt by the Office of the Risk Management Administrator. D. A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body. . . . 5 According to the Petition for Intervention filed on March 30, 2022, CompSource had paid $51,648.21 in medical and indemnity benefits on behalf of Garst. 6 Title 51 O.S. 2021 §155(14), see note 1, supra. 7 The trial court signed the order on February 13, 2023, and it was filed the next day. 8 The Supreme Court assumes original jurisdiction in the exercise of its general superintending control over all inferior courts and all agencies, commissions, and boards created by law. The Supreme Court has the power on original jurisdiction to correct an abuse of discretion or compel action where the action taken is arbitrary even though the officer is vested with judgment and discretion. Okla. Const. art. 7, §4. Before a writ of prohibition may issue, a petitioner must show: 1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; 2) the exercise of said power is unauthorized by law; and 3) the exercise of that power will result in injury for which there is no other adequate remedy. Maree v. Neuwirth, 2016 OK 62, ¶6, 374 P.3d 750; Baby F. v. Oklahoma County Dist. Court, 2015 OK 24, ¶8, 348 P.3d 1080; James v. Rogers, 1987 OK 20, ¶5, 734 P.2d 1298. 9 The Okla. Const. art. 10 §9C, was added by Laws 1976, SJR 54, Section 1, State Question 522, Legislative Referendum 217, and adopted at election held August 24, 1976. It was later amended by Laws 1998, HJR 1098, Section 1, State Question 678, Legislative Referendum 308, which was adopted at election held November 3, 1998. 10 The Okla. Const. art. 10, §9C(a) provides: (a) The board of county commissioners, or boards if more than one county is involved, may call a special election to determine whether or not an ambulance service district shall be formed. An election shall also be called by the board or boards involved upon petition signed by not less than ten percent (10%) of the registered voters of the area affected. Said area may embrace a county, a part thereof, or more than one county or parts thereof, and in the event the area covers only a part or parts of one or more counties, the area must follow school district boundary lines. All registered voters in such area shall be entitled to vote, as to whether or not such district shall be formed, and at the same time and in the same question authorize a tax levy not to exceed three (3) mills for the purpose of providing funds for the purpose of support, organization, operation and maintenance of district ambulance services, known as emergency medical service districts and hereinafter referred to as "districts." If the formation of the district and the mill levy is approved by a majority of the votes cast, a special annual recurring ad valorem tax levy of not more than three (3) mills on the dollar of the assessed valuation of all taxable property in the district shall be levied. The number of mills shall be set forth in the election proclamation, and may be increased in a later election, not to exceed a total levy of three (3) mills. This special levy shall be in addition to all other levies and when authorized shall be made each fiscal year thereafter. Each district which is herein authorized, or established, shall have a board of trustees composed of not less than five members. Such trustees shall be chosen jointly by the board or boards of county commissioners, provided that such membership shall be composed of not less than one individual from each county or part thereof which is included in said district. Original members of the board of trustees shall hold office, as follows: At the first meeting of said board, board members shall draw lots to determine each trustee's original length of term in office. The number of lots to be provided shall be equal to the number of original members of the board, and lots shall be numbered sequentially from one through five, with lots in excess of the fifth lot being also numbered sequentially from one through five until all lots are numbered. Each original member or members added by an expansion area of the board shall hold office for the number of years indicated on his or her lot. Each year, as necessary, the board or boards of county commissioners shall appoint successors to such members of the board of trustees whose terms have expired, and such subsequent appointments shall be for terms of five (5) years. Such board of trustees shall have the power and duty to promulgate and adopt such rules, procedures and contract provisions necessary to carry out the purposes and objectives of these provisions, and shall individually post such bond as required by the county commissioners, which shall not be less than Ten Thousand Dollars ($10,000.00). The district board of trustees shall have the additional powers to hire a manager and appropriate personnel, contract, organize, maintain or otherwise operate the emergency medical services within said district and such additional powers as may be authorized by the Legislature. In lieu of counties creating such district, cities or towns were also authorized to create districts. The Okla. Const. art. 10, §9(p) provides: (p) In lieu of proceeding to establish a district as outlined here in above through the county commissioners, the governing body of any incorporated city or town may proceed to form a district, join an existing district or join with other incorporated cities or towns in forming a district. In such case, said governing body shall be considered as being substituted as to the powers and duties of said county commissioners as set forth here in above; provided, further, said city or town shall be considered as being substituted as to the powers and duties of a district formed, as set forth here in above. All rights, duties, privileges and obligations of the residents and voters in such city or town shall be the same as those outlined for the district as set forth above. 11 The Okla. Const. art.10, §9C(a), see note 10, supra. 12 Title 25 O.S. 2021 §304 provides in pertinent part: 1. "Public body" means the governing bodies of all municipalities located within this state, boards of county commissioners of the counties in this state, boards of public and higher education in this state and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts or any entity created by a public trust including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund as authorized by Section 2007 of Title 62 of the Oklahoma Statutes, task forces or study groups in this state supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body. Public body shall not include the state judiciary, the Council on Judicial Complaints when conducting, discussing, or deliberating any matter relating to a complaint received or filed with the Council, the Legislature, or administrative staffs of public bodies including, but not limited to, faculty meetings and athletic staff meetings of institutions of higher education when those staffs are not meeting with the public body, or entry-year assistance committees. Furthermore, public body shall not include the multi disciplinary teams provided for in Section 1-9-102 of Title 10A of the Oklahoma Statutes, in Section 2 of this act, and in subsection C of Section 1-502.2 of Title 63 of the Oklahoma Statutes or any school board meeting for the sole purpose of considering recommendations of a multi disciplinary team and deciding the placement of any child who is the subject of the recommendations. Furthermore, public body shall not include meetings conducted by stewards designated by the Oklahoma Horse Racing Commission pursuant to Section 203.4 of Title 3A of the Oklahoma Statutes when the stewards are officiating at races or otherwise enforcing rules of the Commission. Furthermore, public body shall not include the board of directors of a Federally Qualified Health Center; 13 Title 19 O.S. 2021 §1703 provides: This act shall apply to all emergency medical service districts created pursuant to the provisions of Section 9C of Article X of the Constitution of the State of Oklahoma. 14 Title 19 O.S. 2021 §1702 provides: The purpose of this act is to provide a budget procedure for emergency medical service districts which shall: 1. Establish uniform and sound fiscal procedures for the preparation, adoption, execution and control of budgets; 2. Enable districts to make financial plans for both current and capital expenditures and to ensure that their directors administer their respective functions in accordance with adopted budgets; 3. Make available to the public and investors sufficient information as to the financial conditions, requirements and expectations of the district; and 4. Assist districts to improve and implement generally accepted accounting principles as applied to governmental accounting, auditing and financial reporting and standards of governmental finance management. 15 Title 19 O.S. 2021 §1705 provides: The State Auditor and Inspector, or his designee, shall advise districts on procedural and technical matters relating to accounting and budget procedures. It shall be the duty of the employees of the districts with notice of such advice to follow the instructions or advice of the State Auditor and Inspector until relieved of such duty by a court of competent jurisdiction or until the Supreme Court shall hold otherwise. 16 Title 74 O.S. 1981 §902. The Act applied to the state, any county, county hospital, city or town, and any public trust or private trust in which a county, city or town participates. 17 Title 51 O.S. 2021 §152.1 provides: A. The State of Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. B. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution. This section of the act has remained unchanged since its adoption in 1984, and it became effective October 1, 1985. 18 Title 51 O.S. 2021 §152.1, supra at note 16. 19 Title 51 O.S. 2021 §152.1, supra at note 16. 20 Title 51 O.S. 2021 §152 provides in pertinent part: . . .11. "Political subdivision" means: a. a municipality, b. a school district, including, but not limited to, a technology center school district established pursuant to Section 4410, 4411, 4420 or 4420.1 of Title 70 of the Oklahoma Statutes, c. a county, . . . 21 Title 51 O.S. 2021 §152 provides in pertinent part: 11. "Political subdivision" means: . . . d. a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county. . . . e. for the purposes of The Governmental Tort Claims Act only, a housing authority created pursuant to the provisions of the Oklahoma Housing Authority Act, f. for the purposes of The Governmental Tort Claims Act only, corporations organized not for profit pursuant to the provisions of the Oklahoma General Corporation Act for the primary purpose of developing and providing rural water supply and sewage disposal facilities to serve rural residents, g. for the purposes of The Governmental Tort Claims Act only, districts formed pursuant to the Rural Water, Sewer, Gas and Solid Waste Management Districts Act, h. for the purposes of The Governmental Tort Claims Act only, master conservancy districts formed pursuant to the Conservancy Act of Oklahoma, i. for the purposes of The Governmental Tort Claims Act only, a fire protection district created pursuant to the provisions of Section 901.1 et seq. of Title 19 of the Oklahoma Statutes, . . . l. for purposes of The Governmental Tort Claims Act only, a conservation district created pursuant to the provisions of the Conservation District Act, m. for purposes of The Governmental Tort Claims Act only, districts formed pursuant to the Oklahoma Irrigation District Act, . . . r. for purposes of The Governmental Tort Claims Act only, a circuit engineering district created pursuant to Section 687.1 of Title 69 of the Oklahoma Statutes, s. for purposes of the Governmental Tort Claims Act only, a substate planning district, regional council of government or other entity created pursuant to Section 1001 et seq. of Title 74 of the Oklahoma Statutes, . . .

bb672e14-94ce-4c8d-a399-70677ced5c91

BASE v. DEVON ENERGY PRODUCTION

oklahoma

Oklahoma Supreme Court

BASE v. DEVON ENERGY PRODUCTION2024 OK 3Case Number: 119366Decided: 02/06/2024THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KAYE FRANCES BASE and ARLYN JOE JUSTICE, as Trustees of THE EUNICE S. JUSTICE AMENDED, REVISED AND RESTATED 1990 REVOCABLE TRUST AGREEMENT EXECUTED ON THE 31ST DAY OF JANUARY, 2011, Plaintiffs/Appellants/Petitioners, v. DEVON ENERGY PRODUCTION COMPANY, L.P., a domestic limited partnership, Defendant/Appellee/Respondent. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION II ¶0 This oil and gas case involves a dispute over the amount of royalties that Defendant/Appellee/Respondent Devon Energy Production Company, L.P. (hereinafter "Devon") has paid to The Eunice S. Justice Amended, Revised, and Restated 1990 Revocable Trust Agreement Executed on the 31st Day of January 2011 (hereinafter "the Trust") since production commenced in 2017 at nine wells collectively called the Bernhardt Wells. The trustees of the Trust, Plaintiffs/Appellants/Petitioners Kaye Frances Base and Arlyn Joe Justice (hereinafter "Trustees"), allege that the Trust is entitled to recover a 3/16 royalty under a 1978 Lease executed between everyone's predecessors-in-interest; but Devon alleges its interest arises from an earlier 1973 Lease under which the Trust is only entitled to receive the 1/8 royalty that it has paid. The Trustees filed suit against Devon in May of 2019, seeking to quiet title in favor of the 1978 Lease and to obtain pursuant to the Production Revenue Standards Act, 52 O.S.2021, §§ 570.1 et seq, both an accounting and a recovery of the 1/16 difference in royalties that Devon has allegedly underpaid. Nearly a year later, Devon sought summary judgment based on the 15-year statute of limitation found in 12 O.S.2021, § 93(4), arguing that Trustees' quiet title action would have accrued by 1979 and been barred after 1994. The trial court granted Devon's motion for summary judgment and denied Trustees' subsequent motion for new trial. Trustees appealed, and the Court of Civil Appeals (COCA) affirmed by a 2-1 vote. Trustees then sought review on certiorari, arguing COCA failed to follow both this Court's numerous precedents holding there is no statute of limitation on an equitable quiet title claim and this Court's precedent in Claude C. Arnold Non-Operated Royalty Interest Properties v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817, regarding when their claims accrued. We previously issued a writ of certiorari and now vacate COCA's opinion, affirm the trial court's summary judgment, and remand the case for further proceedings not inconsistent with this opinion. OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. Kraettli Q. Epperson, NASH, COHENOUR & GIESSMANN, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellants/Petitioners. Timothy J. Bomhoff and Laura J. Long, MCAFEE & TAFT, A PROFESSIONAL CORPORATION, Oklahoma City, Oklahoma, for Defendant/Appellee/Respondent. COMBS, J.: I. FACTUAL AND PROCEDURAL BACKGROUND ¶1 Plaintiffs/Appellants/Petitioners Kaye Frances Base and Arlyn Joe Justice are co-trustees of a revocable living trust that their mother, Eunice (née Shawver) Justice, originally settled in 1990 but that she amended in 2011 both to add them as her co-trustees and to name them as successor trustees. The name of the trust is The Eunice S. Justice Amended, Revised, and Restated 1990 Revocable Trust Agreement Executed on the 31st Day of January 2011. Eunice died March 30, 2015, at which point Trustees succeeded.1 ¶2 This Trust is a successor-in-interest to certain mineral interests in the 80-acre lot contained in the northern half of the northeast quarter of Section 8, Township 15 North, Range 9 West of the Indian Meridian (i.e., N/2 NE/4 of Section 8-15N-9W in abbreviated form) in Kingfisher County, Oklahoma.2 Back in 1973, those interests were owned by Eunice's mother, Lena Shawver, as life tenant and by Eunice herself as remainderman. On June 16, 1977, Mrs. Shawver conveyed her interests in the land and minerals of the N/2 NE/4 of Section 8-15N-9W to Eunice, thus reuniting the life estate and the remainder.3 ¶3 On December 4, 1973, Lena Shawver and Eunice Justice executed an oil and gas lease in favor of the Rodman Corporation, a Texas corporation, concerning those mineral interests in the N/2 NE/4 of Section 8-15N-9W (hereinafter "the 1973 Lease").4 Under its habendum clause, the 1973 Lease would remain valid for a primary term lasting 5 years and then for a secondary term lasting "as long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of the products covered by this lease is or can be produced" by a well drilled during the primary term.5 The 1973 Lease also provided for payment of a one-eighth (1/8) royalty to the lessors.6 Consequently, the Rodman Corporation had until December 4, 1978, to drill a producing well. But on August 1, 1977, the Rodman Corporation assigned its interests as lessee to Partnership Properties Co., a Colorado general partnership.7 Thus, Partnership Properties Co. had a little over one year left to drill a producing well and thereby hold the 1973 Lease into its secondary term. ¶4 But before a well could be drilled, Eunice and her husband, Herman O. Justice, executed a second oil and gas lease concerning the very same mineral interests on July 24, 1978 (hereinafter "the 1978 Lease") in favor of Petro-Lewis Funds, Inc., a Colorado corporation.8 The habendum clause of the 1978 Lease specified that its three-year primary term would commence on December 4, 1978 (i.e., the date that the 1973 Lease's primary term was set to expire): 2. This lease shall remain in force for a term of three (3) years / and as long thereafter as oil, gas, casinghead gas, casinghead gasoline, or any of the products covered by this lease is or can be produced from said land, or from land with which said land is pooled, or operations are being continued as hereinafter provided. . . . . 5. If operations for the drilling of a well for oil or gas are not commenced on said land or on acreage pooled therewith as herein provided on or before one year from this date, this lease shall terminate as to both parties, unless the lessee shall on or before one year from this date pay or tender to the lessor or for the lessor's credit in the Watonga State Bank Bank at Watonga, Oklahoma or its successors . . . the sum of Eighty Dollars & No/100's -------- Dollars ($ 80.00 ), which shall operate as a rental and cover the privilege of deferring the commencement of operations for drilling for a period of one year. . . .9 The 1978 Lease also provided for a higher royalty payment to Eunice and her husband at three-sixteenths (3/16).10 ¶5 Prior to the expiration date in the 1973 Lease and the effective date in the 1978 Lease, a producing well was drilled. Petro-Lewis Corporation, a Colorado corporation, was the operator for the N/2 NE/4 of Section 8-15N-9W from at least June 1978 to May 1985.11 Petro-Lewis Corporation filed a pooling application with the Oklahoma Corporation Commission on June 12, 1978--wherein it proposed drilling a well on Eunice's land into the Mississippian-Chester Lime common source and pooling the drilling rights to that formation for all of the operators with leaseholds in Section 8-15N-9W--which the Corporation Commission approved on July 21, 1978.12 The Lena Shawver #1 well (hereinafter "the Shawver Well") was spud on Eunice's land on August 21, 1978, and drilling was completed into the Chester zone of the Mississippian formation on September 24th.13 Production was first achieved on November 24, 1978.14 ¶6 After production on the Shawver Well was achieved, all parties acted as if the terms of the 1973 Lease controlled, as demonstrated below. ¶7 On the lessor's side, Eunice acknowledged her right to a 1/8 royalty on production from the Shawver Well at least three times. First, on July 6, 1979, Eunice signed a Gas Division Order filed with the Corporation Commission, wherein she certified and guaranteed that she was entitled to a 1/8 royalty payment of half (N/2) of one-quarter (NE/4) of Section 8-15N-9W--i.e., a fractional interest of "1/8 of 1/2 of 1/4" or a decimal interest of 0.01562500: TO: PETRO-LEWIS CORPORATION PROPERTY BOX 2250 PAYMENT NO. OK-EC-77-800-01 DENVER, COLORADIO 80201 July 6 19 79 Each of the undersigned certifies and guarantees that he is the legal owner of, and hereby warrants title to, his respective interest as set out below in the natural gas, including gas condensate, produced and saved from the Petro-Lewis Corp.-Lena Shawver #1 lease, located in Kingfisher County, State of Oklahoma , described as All of Section 8, Township 15 North, Range 9 West, In Kingfisher County, Oklahoma, limited to the production of gas and condensate from the Mississippi -- Chester Lime Formation Effective 7:00 A.M. first production and until further written notice, you are authorized and directed, subject to all of the subsequent provisions hereof, to give credit as follows for such interest, and in compliance herewith shall relieve you of any further liability to the undersigned with respect to such production: OWNER NO. NAME, ADDRESS, AND SOCIAL SECURITY NO. FRACTIONAL INTEREST DECIMAL . . . . . . . . Eunice S. Justice P.O. Box 95 Watonga, Oklahoma 73772 S.S. No. ____________ . . . . . . . . 1/8 of 1/2 of 1/4 . . . . . . . . .01562500 RI . . . . . . . . SOCIAL SECURITY NUMBER: Attest if owner is corporation, otherwise two witnesses: __________________________ E.S.J. : /s/ Eunice S. Justice __________________________ Eunice S. Justice __________________________ __________________________ __________________________ __________________________ 15 Then on November 6, 1980, Eunice signed another Gas Division Order filed with the Corporation Commission certifying the same decimal interest of 0.01562500.16 Lastly, in August of 1985, Eunice signed a third Division Order wherein she "verif[ied] and guarantee[d]" that she was entitled to the same decimal interest of 0.0156250.17 On all three Division Orders, only Eunice is listed as the owner, again demonstrating that the parties were operating under the 1973 Lease to which her husband was not a party.18 ¶8 On the flip side, the lessees and operators did at least two things that seemingly demonstrate their belief that the 1973 Lease controlled. First, it is undisputed that Eunice always received a 1/8 royalty on production from the Shawver Well.19 The record on appeal contains only limited evidence regarding what royalty payments Eunice and/or the Trust received on production from the Shawver Well, but what little evidence does exist would suggest that the Shawver Well maintained continual production and that since 2004 the lessor received 1/8 royalty payments from all but one gas purchaser (who paid a slightly higher 1/6 royalty).20 Second, after a series of assignments made Partnership Properties Co. the owner of both the 1973 Lease and the 1978 Lease effective March 22, 1979,21 Partnership Properties Co. and its successors-in-interest only made assignments of the 1973 Lease; it is undisputed that the 1973 Lease was assigned at least fifty-six times since 1979.22 Neither side has presented any evidence of an assignment mentioning the 1978 Lease, thereby further illustrating the parties' understanding that the 1973 Lease controlled. ¶9 Nevertheless, in 2008 Chesapeake Operating Inc. (hereinafter "Chesapeake") drilled a second well and began paying a 3/16 royalty on its production, as if the 1978 Lease had superseded or amended the terms of the 1973 Lease. Chesapeake became the operator of the Shawver Well in June of 2004.23 Related Chesapeake entities also began acquiring leasehold interests under the 1973 Lease in 2004 through a series of mergers and assignments involving predecessor-in-interest and former operator of the Shawver Well, Ricks Exploration, Inc. (hereinafter "Ricks Exploration").24 Then in August of 2007, Chesapeake began pursuing the possibility of drilling a second well into a deeper formation on the Trust's land.25 The Justice #1-8 well (hereinafter "the Justice Well") was spud on the Trust's land on October 13, 2007, and drilling was completed into the Simpson formation on January 2, 2008.26 Production was first achieved on January 2, 2008.27 Shortly thereafter, Eunice, in her capacity as trustee, signed a Gas Division Order effective January 2, 2008, wherein she "warrant[ed] the title to the interest set out below," which included a "Net Ac[reage]" of 80.000000 acres out of 640.000000 unit acres, a "L[ea]se N[et ]R[evenue ]I[nterest]/ R[oyalty ]I[nterest]" of 0.18750000 (equivalent to 3/16) on production from the Justice Well, and a "Unit Int[erest]" of 0.02343750 (equivalent to a 3/16 royalty payment of half (N/2) of one-quarter (NE/4) of Section 8-15N-9W--i.e., 3/16 × 1/2 × 1/4).28 Ever since first production, Chesapeake and its successors have paid the Trust a 3/16 royalty payment on production from the Justice Well.29 ¶10 Nearly a decade later, Defendant/Respondent Devon Energy Production Company, L.P. drilled eight multi-unit horizontal wells and began paying a 1/8 royalty on their production, as if the 1973 Lease controlled over the 1978 Lease. Devon acquired leasehold interests under the 1973 Lease through a merger in January of 2016 with Felix Energy, LLC and Felix Energy Holdings, LLC, and those entities had obtained leasehold interests through a series of assignments tracing back to Ricks Exploration.30 Starting in 2015, Felix Energy and Devon developed a plan for several new multi-unit horizontal wells that would be spud in, or cross through, the spacing and drilling unit established in Section 8-15N-9W, which includes the Trust's land.31 Between 2016 and 2018, Devon drilled eight producing horizontal wells collectively referred to as the Bernhardt Wells into the Mississippian (less Chester) formation--i.e., the Bernhardt 8_5-15N-9W 1HX well, the Bernhardt 8_5-15N-9W 2HX well, the Bernhardt 8_5-15N-9W 3HX well, the Bernhardt 8_5-15N-9W 4HX well, the Bernhardt 8_5-15N-9W 5HX well, the Bernhardt 8_5-15N-9W 6HX well, the Bernhardt 8_5-15N-9W 7HX-R well, and the Bernhardt 8_5-15N-9W 8HX well--thereby entitling the Trust to royalty payments on production from these Bernhardt Wells.32 The Bernhardt 8_5-15N-9W 1HX well began producing in July of 2017, and Devon issued its first royalty payment check to the Trust on November 15, 2017, for production from the months of July, August, and September.33 From the record on appeal, it appears Devon paid the Trust a 1/8 royalty on production from Bernhardt 8_5-15N-9W 1HX well,34 but it remains unclear what, if anything, has been paid on the other Bernhardt Wells.35 Thus, for the sake of this recitation of facts concerning the merits dispute between Trustees and Devon, it can only be assumed that Devon has been paying the Trust a 1/8 royalty on production from all the Bernhardt Wells. ¶11 During late 2017 and early 2018, the parties engaged in unproductive prelitigation discussions. At some point in late 2017, the Trustees received from Devon a proposed Division Order for the Bernhardt 8_5-15N-9W 1HX well that caused them some concern, because they believed the Division Order assigned the Trust an incorrect decimal interest.36 In response, the Trustees hired counsel, who asked Devon for a copy of the title opinion it had used as a basis for calculating the Trust's decimal interest.37 The attorney also reached out to the lessees holding interests in the Shawver Well and the Justice Well--i.e., Chesapeake and Gastar Exploration, Inc. (hereinafter "Gastar"), respectively--and requested copies of any title opinions they possessed concerning the Trust's 3/16 royalty interest on the Justice Well or the Trust's 1/8 royalty interest on the Shawver Well.38 Devon promptly produced a few pages from a September 2017 title opinion, but the Trustees' attorney subsequently advised Devon that he "would like to review complete copies of all available title opinions for Section 8" before "taking any legal action."39 The Trustees' attorney also began taking certain legal positions that would bolster the Trustees' claim to a 3/16 royalty interest on the Bernhardt Wells. For instance, in a letter from November 22, 2017, he argued "the terms of the Second Lease [i.e., the 1978 Lease] either (1) superseded or voided the terms of the First Lease [i.e., 1973 Lease] or (2) modified and extended the First Lease to the extent of any changes in the lease terms such as the primary term and royalty provisions."40 He also posited that he and his clients "[we]re not certain but believe[d] that Petro-Lewis Funds, Inc."--who was the lessee under the 1978 Lease--was either "a partner of . . . or the alter ego of " Partnership Properties Co.--who was the lessee under the 1973 Lease when the 1978 Lease was executed.41 If that were true, then the 1978 Lease might more plausibly be characterized as a novation of the 1973 Lease. Ultimately, on April 5, 2018, Devon refused to produce a full copy of its September 2017 title opinion or any portion of title opinions from October 2006, June 2015, or November 2017 in its possession, asserting that such documents were protected under the attorney-client privilege and as attorney work product.42 It is unclear from the record on appeal whether Chesapeake or Gastar ever produced any title opinions in their possession. Thereafter the record on appeal falls silent until Trustees commenced litigation. ¶12 On May 7, 2019, the Trustees filed this lawsuit against Devon only.43 The Trust brought three claims against Devon: (1) a "QUIET TITLE" claim based on the fact that "[t]here can be only one oil and gas lease on a particular tract of land and for the same interests at the same time" and request for "DECLARATORY JUDGMENT" asking the trial court to find "that the terms of the Shawver/Rodman OGL [i.e., the 1973 Lease] has been supplanted or amended by the terms of the Justice/P-LF OGL [i.e., the 1978 Lease], and, in particular, that the proper royalty rate is 3/16ths on all Bernhardt Wells on the Subject Interests as of the date of first production";44 (2) an "ACCOUNTING" claim brought pursuant to the Production Revenue Standards Act (PRSA), 52 O.S.2011, §§ 570.1 et seq., asking the trial court to require Devon to make an accounting for all royalty payments made on production from the Bernhardt Wells;45 and (3) a "PAYMENT" claim brought pursuant to the PRSA asking the trial court to "make [the Trust] whole by making payment to the [Trust] for the shortage" caused by allegedly underpaying royalties, "with interest thereon."46 Repeating arguments made in the prelitigation letters, the petition alleged the 1973 Lease "ha[d] been amended by" the 1978 Lease "or, in the alternative," the 1978 Lease "[wa]s a novation of" the 1973 Lease.47 Devon put the case at issue, filing an answer on June 19, 2019, and an amended answer on July 5, 2019.48 Therein, Devon asserted several affirmative defenses, including that the Trustees' claims were barred by the statute of limitation and by laches and that Trustees "are not entitled to any remedy they seek because they failed to promptly act to enforce any of their alleged rights under the Lease."49 ¶13 After engaging in limited written discovery,50 Devon filed a motion for summary judgment on May 18, 2020.51 Therein, Devon argued that the Trust's quiet title claim is barred by the catchall 15-year statute of limitation for real property actions found in 12 O.S.2011, § 93(4).52 In particular, Devon argued the undisputed facts demonstrate that the Trust's settlor and predecessor-in-interest, Eunice (née Shawver) Justice, had notice of the lessee's intent to pay a 1/8 royalty pursuant to the 1973 Lease as far back as 1979, when she signed a Gas Division Order certifying and guaranteeing entitlement to that royalty amount.53 Thus, Devon argued the Trust's quiet-title claim accrued by 1979 at least and became barred after 1994.54 Moreover, Devon argued that "[t]here are now at least eight different working interest owners credited with interest associated with the 1973 Lease . . . . [and] at least 16 overriding royalty interest owners whose interest is dependent on the 1/8 royalty provision of the 1973 Lease," whose interests would be disrupted if the 15-year statute of limitation is not applied to provide some certainty of title.55 Finally, Devon argued that the remaining claims for declaratory relief, an accounting, and payment brought pursuant to 12 O.S.2011, § 1651 and the PRSA, 52 O.S.2011, § 570.14, are precluded insofar as they are all "derivative" claims "contingent on a threshold ruling in [the Trust']s favor on quiet title."56 ¶14 Trustees filed their response to Devon's motion for summary judgment on June 4, 2020.57 Their attack of Devon's motion was threefold. ¶15 First, Trustees argued that the material facts Devon proffered in its motion are not undisputed.58 Trustees disputed Devon's contentions that the Shawver Well was drilled under the 1973 Lease, that the terms of the 1973 Lease are what they say they are, that Devon's leasehold interests derive solely from the 1973 Lease, and that Eunice's acceptance of 1/8 royalty payments somehow validated the royalty term in the 1973 Lease--all based on their already familiar argument that the 1978 Lease "either modified the 1973 Lease or acted as a novation thereof."59 Trustees also disputed Devon's contention that the 1978 Lease named Petro-Lewis Funds, Inc. as the lessee, based on the other familiar argument that "Petro-Lewis Funds, Partnership Properties Co., or Petro-Lewis Corporation are one and the same via an alter ego theory."60 Trustees disputed Devon's contention that the 1973 Lease had been held by continuous production all these years, arguing that Devon had presented "no evidence of well costs and expenses and revenue provided."61 Moreover, Trustees disputed Devon's contention that Eunice guaranteed and certified a 1/8 royalty interest in the 1979 Gas Division Order she signed, arguing that such Gas Division Order was not filed of record and therefore did not define ownership interests and that, by its own terms, it was only effective "until further written notice" and therefore became ineffective when Trustees' attorney sent correspondence in November 2017 disputing the royalty interest amount.62 ¶16 Second, Trustees argued that they "ha[d] identified a number of additional material facts . . . omitted from Devon's Motion for Summary Judgment" that would render summary judgment improper.63 Most of their additional facts concerned their argument that Partnership Properties Co. and the various Petro-Lewis entities were "one and the same via an alter ego theory," including the presentation of nearly 200 pages of documentation from county land records, the U.S. Securities Exchange Commission (SEC), and the U.S. Department of Interior's Bureau of Land Management.64 But Trustees also presented evidence that Chesapeake and Gastar had paid them a 3/16 royalty on production from the Justice Well and that Mustang Gas Products, LLC had even paid them a 1/6 royalty on production from the Shawver Well since 2005.65 The Trustees pointed out one check from May 2016 in particular where Chesapeake paid the Trust a 1/8 royalty on production from the Shawver Well and a 3/16 royalty on production from the Justice Well--even though, "[s]upposedly, distribution is based on the same leasehold interest"--thereby demonstrating the need for additional fact-finding.66 ¶17 Lastly, Trustees asserted that the law does not favor Devon. Along these lines, Trustees argued first that it is "nonsensical," "illogical and, therefore, absurd" to suggest "that they should have [to] file[] a quiet title action" in order to obtain royalty payments pursuant to the terms of the 1978 Lease because, as a novation of the 1973 Lease, the terms of the 1978 Lease are enforceable "without any need for court intervention."67 Trustees argued by extension that Devon is the one who must "challenge the terms of the 1978 Lease at this time" with an action to reform the 1978 Lease or to quiet title in the 1973 Lease, but that any such challenges are "too late" under either the 5-year statute of limitation in 12 O.S.Supp.2017, § 95(A)(2) or the 15-year statute of limitation in 12 O.S.2011, § 93(4).68 Second, Trustees contended that the law would not require them to file suit years before their appointment as trustees or years before their discovery that Devon was paying the wrong royalty69--arguments that again ignore material facts concerning other operators' payments of the "wrong" royalty despite the same predicament of two competing leases and concerning the previous trustee's acceptance of those payments for years without challenge. In a similar vein, Trustees' third legal argument was that "[a]ny Statute of Limitations involving Devon and the Bernhardt wells could only commence with the date of first production from those wells,"70 which gets to the issue of when the Trustees' quiet title claim accrued. Fourth, Trustees argued that Devon should not be able to rely upon Eunice's certification of a 1/8 royalty interest in the 1979 Gas Division Order because, according to Kuntz's treatise, division orders generally "do[] not operate as conveyances" and "are not binding to the extent that the operator has been unjustly enriched by retaining benefits under a division order that provides for a different method of royalty calculation than that specified in the lease."71 This argument seemingly presupposes both that the 1979 Gas Division Order was at odds with an indisputably enforceable lease (rather than one of two possible leases) and that Devon was trying to use the terms of the 1979 Gas Division Order to trump the terms of that indisputably enforceable lease. Fifth, in what appears to be an alternative to their arguments of novation, Trustees argued that the merger-of-title doctrine discussed in Concorde Resource Corp. v. Williams Production Mid-Continent Co., 2019 OK CIV APP 37, 379 P.3d 1157, should apply to make the terms of the 1978 Lease operative because the parties agree that ownership of the 1973 Lease and the 1978 Lease coalesced into Partnership Properties Co. on March 22, 1979.72 ¶18 Trustees did make two important concessions in their summary judgment response. First, they acknowledged that they were not seeking recoupment of any underpaid royalties on the Shawver Well because "acceptance of the 1/8 royalty based on the division order may well establish estoppel to recovery."73 Second, Trustees admitted that their remaining claims for declaratory relief, for an accounting, and for back-payments on underpaid royalties are derivative and therefore "are dependent on the survival of their action to enforce their rights as mineral/royalty owners under their 1973 Lease as modified or replaced by their 1978 Lease," which is a euphemism for the quiet title action.74 ¶19 Then two weeks later, Trustees filed a motion to compel discovery and a motion to supplement their response to Devon's motion for summary judgment. In their motion to compel, Trustees sought production of various title opinions in Devon's possession or control or, at the very least, a privilege log listing all title opinions being withheld.75 In their motion to supplement, Trustees asked the trial court for leave to supplement their response to Devon's motion for summary judgment with arguments and analysis of any title opinions obtained through their pending motion to compel.76 ¶20 Devon filed its reply in support of summary judgment on July 6, 2020. Therein, Devon argued that any dispute over the status of the 1978 Lease as a novation or amendment of the earlier 1973 Lease accrued by 1979, such that the Trustees' quiet title claim brought more than fifteen years later is barred.77 Devon further argued that the Trustees' attempt to reframe their claim as one that arose more recently--i.e., after drilling of the Bernhardt Wells--focuses on the damages they seek for underpayment rather than on the viability of the underlying claim and fails to recognize that the drilling of the Bernhardt Wells did not create the dispute at the heart of Trustees' quiet title claim.78 Devon also asserted that neither the appointment of the Trust's new trustees in 2016 nor the generation of new title opinions since 1978 revived the Trustees' time-barred quiet title claim.79 With respect to the Division Orders, Devon argued that the Division Orders were not being used as the source for the 1/8 royalty interest (as that royalty was specified in the 1973 Lease) but were only being used to demonstrate that Eunice and the Trust had actual notice their payments were based on a 1/8 royalty interest.80 Concerning Trustees' argument about merger of title, Devon asserted that "the issue should have been adjudicated in 1979 or 15 years thereafter" and that the merits of such an argument were contradicted by Eunice's certification of the royalty interest from the 1973 Lease and by her "40-year course of conduct accepting a 1/8 royalty consistent with the 1973 Lease."81 Finally, in an effort to deflate Trustees' reliance upon Chesapeake's payment of a 3/16 royalty on production from the Justice Well, Devon produced a letter from Chesapeake's attorney to Trustees' attorney that (1) suggested the 3/16 royalty was based upon "typographical errors" in the title opinions upon which Chesapeake had relied (which he was contemporaneously producing to the Trustees); (2) characterized the 1978 Lease as "a top lease" that never became effective "as the first lease was perpetuated by the Lena Shawver 1-8 well"; and (3) asserted "Chesapeake would [therefore] have a counterclaim against the trust" for overpayment "of the royalties paid on production from the Justice 1-8 well."82 ¶21 The same day, Devon filed its responses to Trustees' motion to compel and motion to supplement, arguing that the title opinions being sought were protected by the attorney-client privilege and were irrelevant to the statute-of-limitation issue raised on summary judgment, as nothing contained in the title opinions could revive the Trust's barred quiet title claim.83 ¶22 On July 21, 2020, the trial court held a hearing on Trustees' motion to compel, Trustees' motion to supplement, and Devon's motion for summary judgment. The trial court received brief arguments from each side. Trustees' attorney argued that they were entitled to receive all the title opinions, particularly insofar as privileged communications were protected from disclosure under the parties' agreed protective order.84 Yet again, he attempted to reframe Trustees' quiet title claim as an action to enforce record title in order to distinguish their claim from the run-of-the-mill quiet title claims (e.g., a quiet title claim requiring reformation of a deed) to which a statute of limitation would apply: [T]his case is not about trying to reform a deed. This is about simply our quiet title -- excuse me -- our record title, which in essence they need to honor. We're asking the Court simply ask them to honor. It's based on record title, which has two documents in it. It's got a 1973 lease and a 1978 lease modification. That's the end of the story, Your Honor. Everything else they bring up is irrelevant. . . . . . . . [T]he record title is obviously in our name. We don't have to reform any deeds. We don't have to do anything. It's there.85 In response, Devon's attorney argued the case was not about who owns the mineral interests and that Devon wasn't presenting the 1979 division order to change title, but instead to demonstrate when a dispute over the applicability of the 1973 Lease accrued: [T]he only point of the division order is not to change title whether it exists or does not exist. The only point of the division order is to demonstrate that this was a dispute that was out there since 1979. So as of today, we're not addressing any sort of claims or damages or who owns it, who doesn't own it. As of 1978 or 1979, there was a recognition that the 1973 lease applied. There's no dispute. Since 1979 we have recognized the 1973 lease. So it's that recognition that has lasted for 15 years and now the statute of limitations in order to quiet title, to have a different recognized lease[,] that's expired.86 Regarding the motion to compel, Devon's attorney argued that the privileged communications in the title opinions would have no relevance to the statute-of-limitation issue raised on summary judgment and that privileged communications don't have to be produced just because there's a protective order in place: Devon's attorneys' opinions has [sic] no bearing on that [i.e., when a dispute over the leases arose]. Privileged information is not discoverable. Whether [Trustees' attorney] advises his clients, you know, what, I'm not sure that that is going to be a great case, but let's try it anyway. That's privileged. He can tell his clients that anyway, but, boy, I sure would like to know if he told his clients that, right? Like it doesn't matter what type of information, even if there was a smoking gun, which there's not. If there was a smoking gun, it doesn't matter, it's still privileged. What attorneys tell their clients, that is attorney-client communication. That's privileged. . . . . My client does not have to provide privileged information to the other side. His clients do not have to provide privileged information to us. It doesn't matter if the protective order keeps it within the lawsuit, it's still privileged.87 The trial court then announced it was denying Trustees' motion to compel and motion to supplement and granting Devon's motion for summary judgment: THE COURT: All right. The plaintiffs' motion to compel and motion for leave to supplement its response, they're both denied. The defendant's motion for summary judgment, I believe that the '78 lease was a top lease that never took effect because the '73 lease remained in force by production and that the plaintiffs' claims are barred by the statute of limitations, so the motion is granted.88 After the trial court announced its ruling, the Trustees' attorneys gave some push-back. One attorney asked, "For the record, Your Honor, can I ask how you concluded it was a top lease when it had no conditions on it at all?"89 The trial court simply responded, "That's my ruling."90 Another attorney told the trial court Trustees had been preparing their own summary judgment motion and "needed the title opinions in order to present [thei]r own motion, which raises other issues that [he] believe[d] would change -- potentially change [the court's] opinion with the facts that come forth."91 In response, the trial court clarified its ruling on the motion to compel by stating, "[T]he problem is attorney-client privilege and you can't -- I did thousands of title opinions as an attorney and I never expected someone else to be able to get my title opinion to my client, unless my client said you could see it."92 ¶23 The parties disputed the contents of the various proposed orders and asked the trial court to settle the matter for them.93 On October 14, 2020, the trial court entered Devon's proposed orders; the language of the orders denied the motion to compel because the "title opinions are protected from disclosure by the attorney-client privilege," generically denied the motion to supplement, and granted the motion for summary judgment because "[t]he applicable statute of limitations for Plaintiff's [sic] claims has expired." 94 ¶24 On October 23, 2020, Trustees filed a motion for new trial pursuant to 12 O.S.2011, § 651(6) on the basis that the trial court's three orders were "contrary to law."95 The trial court denied Trustees' motion for new trial in January of 2021.96 ¶25 On February 19, 2021, Plaintiffs filed a timely appeal of trial court's January 25, 2021 order denying Trustees' motion for new trial and of the October 14, 2020 orders denying Trustees' motion to compel, denying Trustees' motion to supplement, and granting Devon's motion for summary judgment.97 This Court assigned the appeal to the Tulsa Divisions of the Oklahoma Court of Civil Appeals (COCA) on March 17, 2021.98 As the appeal concerned entry of summary judgment, it proceeded according to Supreme Court Rule 1.36, 12 O.S.Supp.2020, ch. 15, app. 1, without appellate briefing. ¶26 COCA issued its opinion on November 5, 2021, affirming all of the trial court's orders by a 2-to-1 vote.99 On de novo review of the summary judgment,100 Judge Wiseman and Judge Barnes found that the 15-year statute of limitation in 12 O.S.2011, § 93(4) applied to the Trust's quiet title claim and that the limitation period "began to run at the time of filing a document creating a cloud on the title to the minerals."101 The COCA majority consequently held that "Plaintiffs' quiet title claim accrued in 1978, when according to Plaintiffs, the 1978 lease either modified the 1973 lease or was a novation superseding the first lease resulting in a cloud on the title" and that "the trial court correctly held[] Plaintiffs' quiet title claim is time-barred by operation of the 15-year applicable statute of limitations." 102 The COCA majority also addressed whether this Court's recently issued opinion in Claude C. Arnold Non-Operated Royalty Interest Properties, L.L.C. v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817, had any impact on the outcome of this case, ultimately determining "[t]he facts in this case are readily distinguishable from Arnold."103 More specifically, the COCA majority found that the plaintiffs in the Arnold case "played no role in drafting or recording" the subsequent leases that supposedly put a cloud on their overriding royalty interest and therefore had no notice of any interest adverse to their own, whereas in this case "Plaintiffs or their predecessors had actual knowledge of the 1978 lease and had the opportunity to challenge Defendant's claim or maintain their quiet title action when the conflict first arose in 1978 and for 15 years thereafter."104 The COCA majority further found that, "[b]ecause the trial court correctly granted summary judgment, the trial court did not abuse its discretion in denying Plaintiff's motion for new trial."105 Finally, based upon their belief that the summary judgment issues were dispositive of the appeal, the COCA majority affirmed the trial court's orders denying Plaintiffs' motion to compel and motion to supplement.106 ¶27 Judge Blackwell dissented because he "d[id] not agree that the plaintiffs' claims accrued as of the effective date of the 1978 lease."107 He believed that, despite factual differences, application of the rule announced in the Arnold case should control and that Trustees' claim for royalties on new production from those wells did not accrue until Trustees demanded payment in 2017.108 Thus, he believed the trial court erred in finding that all of Trustees claims--in particular the PRSA claims for accounting and royalty payments--were barred.109 Judge Blackwell further noted that he "do[es] not believe there is any statute of limitations governing a simple action to quiet title" and that the 15-year statute of limitation in 12 O.S.2011, § 93(4) only applies to "an action to recover real property," which "is distinct from" an action to quiet title.110 Thus, he would not rely on Pangaea Exploration Corp. v. Ryland, 2007 OK CIV APP 106, ¶ 11, 173 P.3d 108, 112, as authority for application of § 93(4)'s statute of limitation to a quiet title action, but would instead rely upon Oklahoma Supreme Court cases like Hester v. Watt, 1950 OK 131, 218 P.2d 641, and Alfrey v. Richardson, 1951 OK 133, 231 P.2d 363, saying that quiet title actions are equitable in nature and are therefore not susceptible to any statute of limitation.111 Finally, the dissent suggested in a footnote that the only applicable statute of limitation in this case would be the 5-year statute of limitation in 52 O.S.2011, § 570.14(D), which would apply to Trustees claims for an accounting and payment of royalty shortages.112 ¶28 The COCA majority did address one of the dissent's arguments in a footnote. In response to the Judge Blackwell's assertion that no statute of limitations applies to a quiet title action, the majority opinion countered that "equity in these circumstances would dictate the application of the doctrine of laches over this 40-year period to reach the same result."113 In support of this conclusion, the COCA majority quoted this Court's opinion from Wilson v. Bombeck, 1913 OK 486, 134 P. 382, for the proposition that equity can and often does "adopt[] the period of the statute of limitations."114 ¶29 Latching onto portions of Judge Blackwell's dissent, Trustees filed a petition for writ of certiorari on January 28, 2022, seeking this Court's review on the following issues: (1) Whether COCA wrongly determined that Trust's quiet title claim was subject (a) to a statute of limitations, in general, in view of this Court's precedents in Hester v. Watts, 1950 OK 131, 218 P.2d 641, and Board of County Commissioners of Choctaw County v. Schuessler, 1960 OK 252, 358 P.2d 830,115 and (b) to the 15-year statute of limitation in 12 O.S.2011, § 93(4), in particular, in view of the 5-year statute of limitations in § 570.14(D) of the PRSA that governs disputes over "marketable title" and this Court's precedent in Hall v. Globe Life & Accident Insurance Co., 1999 OK 89, 998 P.2d 603, concerning the application of specific provisions over general provisions;116 (2) Whether COCA wrongly distinguished this Court's precedent in Claude C. Arnold Non-Operated Royalty Interest Properties, L.L.C. v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817, concerning when the Trust's quiet title claim accrued;117 and (3) As a matter of first impression, "where 'marketable title' is required to be determined under the PRSA, [see 52 O.S.2011, § 570.10(D)(2)(a),] whether the trial court can decide that question without reviewing the applicable title opinion."118 This Court granted certiorari on September 26, 2022. We now vacate the Court of Civil Appeals opinion and review each of the issues raised on certiorari to ascertain whether the trial court committed reversible error. II. STANDARD OF REVIEW ¶30 The propriety of the trial court's summary judgment is a question of law that this Court reviews de novo. Payne v. Kerns, 2020 P.3d 659, ¶ 10, 467 P.3d 659, 663 (citing Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455). Thus, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its conclusion that there was no genuine dispute of a material fact or in its application of the law. Id. (citing Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084). The statute of limitation is an affirmative defense. 12 O.S.Supp.2018, § 2008(C)(18); cf. supra notes 48--49 and accompanying text (stating that Devon listed the statute of limitation among its affirmative defenses). "Where, as here, the defendant moves for summary judgment on the basis of an affirmative defense, [it] must show that there is no substantial controversy as to facts that are material to the affirmative defense, and that the facts and inferences that may be reasonably drawn from them are in his favor." Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949 (citing Martin v. Chapel, Wilkinson, Riggs & Abney, 1981 OK 134, 637 P.2d 81). ¶31 We review the trial court's denial of a motion for new trial for abuse of discretion. Ullman v. Okla. Highway Patrol, 2023 OK 100, ¶ 15, --- P.3d ---. "Where, as here, our assessment of the trial court's exercise of discretion in denying [Trustees] a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness." Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 107. III. ANALYSIS AND REVIEW A. The Nature of the Trust's Claim ¶32 The most critical issue in this dispute--i.e., the crux of the appeal--is how to classify the claim that the trial court has deemed barred under the 15-year statute of limitation in 12 O.S.2011, § 93(4). Once this question is answered, we can streamline all the issues raised in the Trust's petition for writ of certiorari. ¶33 We face this question because Trustees have been characterizing the claim differently at various junctures throughout this litigation. In their petition initiating this lawsuit, Trustees captioned their first cause of action as seeking to "QUIET TITLE" and to obtain "DECLARATORY JUDGMENT"--a claim that was separate from the second and third causes of action for "ACCOUNTING" and "PAYMENT," respectively, under the PRSA. See supra notes 44--46 and accompanying text. In their response to Devon's motion for summary judgment, Trustees minimized the quiet-title nature of the claim by asserting that their theory of novation made the 1978 Lease enforceable "without any need for court intervention," by contending that Devon was the party who must file a quiet title action to make the 1973 Lease enforceable, and by conceding that the PRSA claims "are dependent upon survival of their action to enforce their rights" under the novated lease. See supra notes 67--68, 74 and accompanying text (emphasis added). Now, at the certiorari stage Trustees are speaking out of both sides of their mouth. On one hand, Trustees fault COCA for applying any statute of limitation to a quiet title action, see Appellants' Pet. for Writ of Cert. 2, 6, 10; yet Trustees are again attempting to recharacterize the claim, this time as a PRSA claim that necessarily requires the courts to review "marketable title": By applying the 15-year SOL, the [COCA] majority Opinion ignores the basis of the claim being made by Appellants and the history of the production from all of Section 8, and ignores the specific five-year S[tatute ]O[f ]L[imitation] provided by the PRSA. . . . The 15-year SOL is not the applicable SOL on this PRSA production payment dispute. See id. at 7, 9 (emphasis added). Thus, Trustees have provided us with a smorgasbord of characterizations for their claim. We cannot address the issues raised on certiorari until we determine what the Trust's claim truly is. ¶34 Trustees' attempt during summary judgment to recast the claim solely as an action seeking a declaratory judgment that Devon must honor record title is clever, yet problematic. First of all, Trustees cite no authority supporting their argument that the 1978 Lease would be enforceable without court intervention. "A proposition which is unsupported by citation to authority will not be considered on appeal." Hough v. Hough, 2004 OK 45, ¶ 16, 92 P.3d 695, 703; cf. Vernor v. Poorman, 1916 OK 608, ¶ 23, 158 P. 615, 619 ("[A]ttorneys who present cases here have no right to place the burden upon this court and consume their time in a laborious research for authorities to support their argument. Sound argument has weight, but in a well-considered case we find both approved argument and established precedent, and the best way to win your case is to back it up with a citation of authorities in point. No other kind of brief is worth while."). Second, in arguing that the 1978 Lease is enforceable without court intervention, Trustees seem to forget that they filed a petition seeking court intervention. Third, in arguing that any action to quiet title in the 1973 Lease or to reform the 1978 Lease should be filed by Devon, Trustees seemingly go too far when they suggest that Devon's ability to file such actions would be barred by the applicable statutes of limitation found in 12 O.S.2011, § 93(4) and 12 O.S.Supp.2017, § 95(A)(1), respectively. See supra note 68 and accompanying text. Such a suggestion seems to belie Trustees' other arguments about the application of any statute of limitation against the quiet title claim found in their petition. Perhaps most damning to Trustees' attempted rebrand, however, is their attorney's statement at the summary judgment hearing: "[T]his case is not about trying to reform a deed. This is about simply our quiet title -- excuse me -- our record title, which in essence they need to honor." See supra note 85 and accompanying text (emphasis added). This Court need not concern itself with a sleight-of-hand argument that is not even taken seriously by its proponent. ¶35 Similarly, Trustees' attempt to recharacterize their claim as a "PRSA production payment dispute" at the certiorari stage is both disingenuous and incorrect for the reasons outlined below. ¶36 First of all, Trustees have previously distinguished the claim at issue from their separate PRSA claims for accounting and payment. Thus, Trustees should be estopped now from assuming an inconsistent position to the prejudice of Devon. ¶37 Second, as our precedent in Purcell v. Santa Fe Minerals, Inc., 1998 OK 45, 961 P.2d 188, demonstrates, the Trust's claims under the PRSA are really an action ex contractu--i.e., they arise out of a contract--which makes the PRSA ill-suited for situations where the parties cannot agree on a governing contract. In Purcell, the lower courts had determined that the lessor's claim for underpaid royalties was limited by the 5-year statute of limitation in 12 O.S.1991, § 95(First) applicable to "[a]n action upon any contract . . . in writing" and that she was entitled to prejudgment interest at 12% pursuant to 52 O.S.1991, § 540 (which was renumbered as § 570.10 of the PRSA when that act was passed in 1992). Purcell, 1998 OK 45, ¶ 7, 11, 961 P.2d at 190--91. On certiorari, "[t]he only question remaining [wa]s whether she [wa]s entitled to the 12% interest on her entire viable claim (back five years), or for some lesser period of time." Id. ¶ 7, 961 P.2d at 190. The lessor "argued that the 12% interest was a contractual claim, and that the five-year limitations period applicable to unpaid royalties also applied to the interest." Id. ¶ 8, 961 P.2d at 190. The lessee argued for a shorter statute of limitation, claiming the 12% interest rate was subject either to the 3-year statute of limitation in section 95(Second) that applied to "an action upon a liability created by a statute other than a forfeiture or penalty" or to the 1-year statute of limitation in section 95(Fourth) that applied to "an action upon a statute for penalty or forfeiture." Id. ¶¶ 8, 11, 961 P.2d at 190--91. Thus, "[t]he issue [wa]s how to characterize, for the purpose of limitations, a claim for the 12% interest authorized by § 540 (now § 570.10). Is it part of a contractual cause action [sic] based upon a breached lease, or is the claim one for interest based upon a liability created by statute, or is it an action based on a statute for a penalty?" Id. ¶ 10, 961 P.2d at 191. We determined that the PRSA's precursor statute did not create the duty to pay royalties to the lessor; the lease (i.e., the contract) did that. Id. ¶ 22, 961 P.2d at 194. Consequently, "for the purpose of applying a statute of limitations[,] § 540 [wa]s not a statutory liability independent of a contract or agreement between the parties"; and "[w]e affirm[ed] the District Court's use of a five-year statute of limitations for Purcell's claim as to interest as well as royalty payments." Id. Our holding confirmed that a PRSA claim is a contractual claim. Thus, the PRSA can only be utilized after the parties have settled which of two contracts controls. ¶38 Third, the issue of whether Trustees hold marketable title is distinct from the issue of which lease controls between the 1973 Lease and the 1978 Lease. Although one's "right to payment" under the PRSA "rests upon a showing of marketable title," Hull, 1989 OK 168, ¶ 14, 789 P.2d at 1279; see also 52 O.S.2011, § 570.10(D)(2)(a) (allowing the withholding of royalty proceeds where "title thereto is not marketable" with interest charged at a lower rate of "six percent (6%) per annum to be compounded annually"), Trustees' establishment of "marketable title" to the N/2 NE/4 of Section 8-15N-9W would not help in narrowing down which lease controls. Marketability of Trustees' title would be determined by looking at title abstracts, deeds, trust agreements, and death certificates, whereas the dispute over which lease controls would require a review of other documents like the two leases and subsequent lease assignments--all of which would be irrelevant to the marketable title analysis. Moreover, it does not appear that the parties even dispute whether Trustees have marketable title, as Devon has been making royalty payments to Trustees since four months after initial production from the Bernhardt 8_5-15N-9W 1HX well. See supra note 33 and accompanying text. ¶39 Rather, the dispute at the heart of the Trust's claim is over which of two leases governs the relationship between the Trust and Devon. That dispute is better resolved through an equitable action to quiet title. Since at least 1926, this Court has recognized the "well settled" principle that "a court of equity has jurisdiction to settle the validity and priority of oil and gas leases between contesting lessees, where such leases have been executed by a common landowner." Gypsy Oil Co. v. Marsh, 1926 OK 246, ¶ 4, 248 P. 329, 331 (citing other jurisdictions and treatises); see also Franklin v. Margay Oil Corp., 1944 OK 316, ¶ 0 (Syllabus #1), 153 P.2d 486, 489. Similarly, in the case of Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, 911 P.2d 1205, we observed that a quiet title action could be used to settle the validity and priority of oil and gas leases in a contest between the lessor and the lessee on one of the leases: "A quiet title action may be used as an equitable proceeding to determine ownership of oil and gas lease or mineral rights." Id. ¶ 35, 911 P.2d at 1213 (citing Crockett v. McKenzie, 1994 OK 3, 867 P.2d 463; Atl. Richfield Co. v. Tomlinson, 1993 OK 106, 859 P.2d 1088; I.C. Gas Amcana, Inc. v. J.R. Hood, 1992 OK 119, 855 P.2d 597). Finally, in our 2021 opinion in the Arnold case, we referred to a claim that very closely resembled the Trustees' claim in this case--i.e., a dispute over whether a 1973 Lease or a 1984 Lease controlled--as "a quiet-title action, which may be used as an equitable proceeding to determine ownership of oil and gas lease or mineral rights." See Arnold, 2021 OK 4, ¶ 10, 485 P.3d at 820 (quoting Voiles, 1996 OK 13, ¶ 35, 911 P.2d at 1213). Thus, our precedents demonstrate a long history of using quiet title actions to settle which of two leases has priority. B. The Trial Court Properly Applied a Statute of Limitation to Trust's Claim. ¶40 At this juncture, we can now resolve the first question Trustees raise on certiorari, i.e., "whether any S[tatute ]O[f ]L[imitations] is applicable to a quiet title suit." Appellants' Pet. for Writ of Cert. 10. We must decide whether the trial court committed legal error in applying any statute of limitation to Trust's quiet title claim. ¶41 The parties hardly present any argument on this issue. Trustees merely assert in their certiorari petition that the "the Court of Civil Appeals has decided a question of substance in a way probably not in accordance with applicable decisions of this Court" in "failing (a) to recognize that case law holds there is not a statute of limitations on a quiet title suit," and then argue that "[t]he dissenting opinion in the current Court of Civil Appeals decision (Blackwell, J.) was correct when it states 'I do not believe there is any statute of limitation governing a simple action to quiet title'" and point us to two of the four cases cited in the dissent. Id. at 2, 6 (citing COCA's Op. ¶ 2, at 20--21 (Blackwell, J., dissenting); Hester v. Watts, 1950 OK 131, 218 P.2d 641; Bd. of Cty. Comm'rs of Choctaw Cty. v. Schuessler, 1960 OK 252, 358 P.2d 830). Devon devotes none of its certiorari answer to this issue. ¶42 The two cases cited by Trustees state only the general rule that governs the use of statutes of limitation as a defense to equitable quiet title actions, without any nuance. The relevant language from the Hester case states: "That by reason of the equitable character of the [quiet title] action the statutes of limitation relied on have no application is clear on authority of the [State ex rel. Commissioners of Land Office v.] Reynolds[, 1949 OK 65, 206 P.2d 184] case and the cases cited therein." Hester, 1950 OK 131, ¶ 10, 218 P.2d at 643. The Schuessler case, citing the Hester case, held: "In view of the fact that plaintiffs [i.e., Jimmie E. Schuessler and Zoe Schuessler Lee] have been in possession of the land in controversy since shortly after same was sold to [Carl] Schuessler [by defendant County Commissioners], we are of the opinion that plaintiffs' action [to quiet title] is not barred by the statutes of limitation." Schuessler, 1960 OK 252, ¶ 24, 358 P.2d at 835 (citing Hester, 1950 OK 131, 218 P.2d 641). In other words, the general rule "is well established by many decisions that the statute of limitations never runs against the plaintiff in a quiet title action who is in possession" of the property at issue. Phillips v. Thompson, 1964 OK 18, ¶¶ 16--17, 389 P.2d 473, 474--75 (citing Alfrey v. Richardson, 1951 OK 133, ¶ 21, 231 P.2d 363, 368--69; Whitehead v. Bunch, 1928 OK 576, ¶ 8, 272 P. 878, 879; Warner v. Mason, 1925 OK 199, ¶¶ 37--38 , 234 P. 747, 750-51; Self v. Prairie Oil & Gas Co., 19 F.2d 481, 482 (8th Cir. 1927), rev'd on other grounds, 28 F.2d 590 (8th Cir. 1928). "The reason for this rule [is] that while the owner in fee continues liable to an action, proceeding, or suit upon the adverse claim [made by someone not in actual possession (e.g., a lienholder)], he has a continuing right to the aid of a court of equity to ascertain and determine the nature of such claim and its effect on his title, or to assert any superior equity in his favor." Id. ¶ 16, 389 P.2d at 475 (quoting 44 Am. Jur. Quieting Title § 63 (1942)). Said another way, "[t]he rationale of the rule that the statute does not run against one in possession is that if one is asserting peaceable dominion over and obtaining the benefit from that which he claims he acquired by the conveyance in question, he is entitled to assume that the other party to the instrument is acquiescing in his claim." Maloy v. Smith, 1959 OK 69, ¶ 12, 341 P.2d 912, 915. ¶43 Nuances exist, however, as the general rule is subject to certain exceptions. For instance, when the party seeking to quiet title has not been in continuous, uninterrupted possession of the property at issue, his equitable claim to quiet title will be viewed as a legal claim to recover the property, which is subject to a statute of limitation. See 65 Am. Jur. 2d Quieting Title § 46 (2021); accord Jenkins v. Frederick, 1952 OK 456, ¶ 22, 257 P.2d 1058, 1063 ("Having lost her title to her mineral interests under the resale [for purposes of satisfying her tax obligations], when defendant pleads here that she has title and that plaintiff [i.e., buyer] has no title to said minerals and seeks to have her title quieted, she is bringing an action for the recovery of real property from one who was in possession beyond the period limiting the time within which she could bring such action." (emphasis added)); Dillon v. Helm, 1945 OK 303 ¶ 16, 163 P.2d 539, 542 (applying the 15-year statute of limitation in 12 O.S.1951, § 93(4) to a quiet title action where the Court determined "this action is in substance one for recovery of such interest" in the real property). "The complainant cannot, by stating in his complaint that the proceeding is a suit to quiet title, convert a cause which is legal into one which is equitable, so as to control the application of the statute [of limitation]." 44 Am. Jur. Quieting Title § 63 (1942). Thus, the applicability of any statutes of limitation to the Trust's quiet title claim would depend upon whether Eunice Justice (as the Trust's predecessor-in-interest) had maintained continual, peaceable, and uninterrupted possession of the mineral interests underlying the N/2 NE/4 of Section 8-15N-9W. ¶44 But what exactly does it means to be "in possession of" a mineral interest? It is axiomatic that possession of the land on the surface is not necessarily the same thing as possession of the minerals underneath the surface, as those two interests can be severed. See Deruy v. Noah, 1947 OK 269, ¶ 12, 185 P.2d 189, 191 ("The general rule is: 'The decisions are unanimous in holding that where the title to the mineral right has been severed from the title to the surface, possession of the surface by its owner is not adverse to the owner of the mineral below it. The mineral owner does not lose his possession by any length of nonuser, and the surface owner cannot acquire title to the minerals by adverse possession based on his exclusive and continued occupancy of the surface alone." (quoting 1 Am. Jur. Adverse Possession § 119 (1936))); Barker v. Campbell-Ratcliff Land Co., 1917 OK 208, ¶ 5, 167 P. 468, 470 ("In the early days of the common law a man who had possession of the surface held to the center of the earth; but under modern developments of mineral lands, including oil and gas, it often happens that the owner of a farm grants and conveys the right to explore and take from the land the minerals, retaining to himself the possession and right to cultivate the surface. . . . The possession of the surface by plaintiff for the purpose of cultivation gave him no possession of the oil and gas under the surface, and did not exclude the defendants from the right to go upon the land and prospect for the same."). Instead, possession of mineral interests must be demonstrated through other means and methods. One method for demonstrating "possession" of a mineral interest is to hold unencumbered record title. Maloy, 1959 OK 69, ¶ 10, 341 P.2d at 915 (discussing the case of Easley v. Ashton, 1949 OK 214, 219 P.2d 199, and finding that its holding "that the statute of limitations was applicable to an action to quiet title to a mineral interest where it was necessary to cancel a mineral deed, regular on its face, before title could be quieted" was "tantamount to holding that one is not in possession of minerals when the title stands in someone else's name (absent leasing or drilling operations), at least insofar as the effect of possession or the lack thereof bears upon the applicability of the statute of limitations in an action to reform or cancel a deed" (emphasis added)). Another method for demonstrating "possession" of a mineral interest--one that is typically used by parties asserting adverse possession--is to show that they have taken steps toward reducing the minerals to possession through drilling operations. See, e.g., Atl. Richfield Co. v. Tomlinson, 1993 OK 106, ¶ 20, 859 P.2d 1088, 1094 ("In order for a person to adversely possess a severed mineral estate, he must actually open a well on a tract of land and reduce the minerals under that tract to possession for the statutory period." (citing Mohoma Oil Co. v. Ambassador Oil Corp., 1970 OK 161, ¶ 48, 474 P.2d 950, 960)); Douglass v. Mounce, 1956 OK 288, ¶ 8, 303 P.2d 430, 433 (per curiam); Deruy, 1947 OK 269, ¶¶ 14, 17, 185 P.2d at 191 ("'Where ownership of the surface and of the mineral rights has been severed, the only way the Statute of Limitations can be asserted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by opening and operating mines for the statutory period.' . . . In the instant case defendant Deruy made no allegation or claim that he had at any time made any attempt to explore for oil, gas, or other minerals, or that he had done anything whatever toward taking or even authorizing the taking of minerals from the land." (quoting Claybrooke v. Barnes, 22 S.W.2d 390, 392 (Ark. 1929)). Bearing in mind these two methods for possessing mineral interests, we can now reframe the relevant inquiry in terms of whether Eunice maintained unencumbered record title over the mineral interests, or whether anyone else had taken steps adverse to Eunice's ownership through drilling and production operations. ¶45 The facts demonstrate that Eunice did not maintain unencumbered record title over the mineral interests, because the Rodman Corporation and its assignees held a leasehold interest in those minerals under the 1973 Lease. Their lease gave them the right to explore and drill for oil and gas at any depth in the N/2 NW/4 of Section 8-15N-9W and, if a producing well was achieved, to maintain operations for as long as the well produced in paying quantities. Eunice had "lost" continual, peaceable, and uninterrupted possession of a portion of her mineral interests in 1973 when she gave the Rodman Corporation an exclusive right to explore and drill; and in 1978 she still lacked continual, peaceable, and uninterrupted possession of the full mineral interests. The existence of that 1973 Lease encumbered Eunice's right to execute a second, contemporaneous lease governing those same minerals in favor of a different lessee. As long as the 1973 Lease remained in effect, Eunice could not give anyone else the right to explore, drill, or produce oil and gas in the N/2 NW/4 of Section 8-15N-9W. See supra note 44 and accompanying text (wherein Trustees acknowledged in their Petition that "[t]here can be only one oil and gas lease on a particular tract of land and for the same interests at the same time"). This restriction on Eunice's property rights constitutes a cloud that would have been clearly discernible to both Eunice and others after execution and recordation of the 1978 Lease. At that point in time, the two leases created a cloud on the competing leasehold interests and, by extension, on Eunice's mineral interests. Thus, going back to the rationales for when a statute of limitation should come to bear on a quiet title claim and when it should not, Eunice should have seen that her possession of the mineral interests was encumbered by the existence of two leases and should have been on notice that she needed to quiet title in favor of her preferred lease through cancellation of the opposing lease. Her quiet title claim would consequently fall under the exception to the general rule and would be subject to a statute of limitation. ¶46 In conclusion, it was not error for the trial court to subject the Trust's quiet title claim to a statute of limitation. C. The Trial Court Properly Applied the 15-Year Statute of Limitation Found in 12 O.S.2011, § 93(4). ¶47 Having determined that a "S[tatute ]O[f ]L[imitations] is applicable to [this] quiet title suit," Trustees second question raised on certiorari is, "if so, whether the 15-year or the 5-year S[tatute ]O[f ]L[imitations] applies." Appellants' Pet. for Writ of Cert. 10. In other words, we must decide whether the trial court committed legal error by applying the wrong statute of limitation to the Trust's quiet title claim. ¶48 The parties engage this issue more heartily than the last. Trustees first recharacterize their quiet title claim as a "PRSA production payment dispute" that requires a determination of "marketable title" and then argue that the "majority Opinion [from the Court of Civil Appeals] ignores the basis of the claim being made by Appellants . . . and ignores the specific five-year S[tatute ]O[f ]L[imitations] provided by the PRSA" in 52 O.S.2011, § 570.14(D). Id. at 2--3, 6, 10. Trustees also point back to the COCA dissent in support of their position, arguing that "[t]he dissent correctly based its opinion on Claude C. Arnold Non-Operated Royalty Interest Props., L.L.C. v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817 in finding that the five-year S[tatute ]O[f ]L[imitations] applies in this case (if any is applicable)." Appellants' Pet. for Writ of Cert. 6 (referencing COCA's Op. ¶ 2 n.3, at 21 n.3 (Blackwell, J., dissenting)).119 Finally, Trustees cite Hall v. Globe Life & Accident Insurance Co. of Oklahoma, 1999 OK 89, 998 P.2d 603, and In re Assessments for Tax Year 2012 of Certain Properties, 2021 OK 7, 481 P.3d 883, and State ex rel. Crawford v. American Standard Life & Accident Insurance Co., 2001 OK CIV APP 152, 37 P.3d 971, in support of their argument that the 5-year statute of limitation for PRSA claims in 52 O.S.2011, § 570.14(D) is more specific to their claim and therefore governs over the 15-year statute of limitation for the recovery of real property in 12 O.S.2011, § 93(4) that is more general. ¶49 In its certiorari answer, Devon points out that Trustees are "tr[ying] to re-frame this lawsuit" that has always been about which of the two leases from the 1970s controls into a lawsuit that is "about production from the Bernhardt wells" drilled in 2015. Resp't's Answer to Pet. for Writ of Cert. 1. Devon also points out that Trustees "have repeatedly admitted [their] PRSA claim relating to the payments for the Bernhardt wells is a damages aspect dependent on an initial determination of the base quiet title dispute," citing Trustees' initiating petition and summary judgment response. Id. at 3 (quoting Pls.' Resp., supra note 3, at 20; Pet., supra note 1, ¶¶ 30--31, at 6). Thus, according to Devon, "[t]he PRSA's five-year statute of limitations is . . . inapplicable" to the quiet title claim. Id. at 4. ¶50 Our analysis here can be short-circuited because we have already determined that the Trusts' claim regarding which of two leases controls is best characterized as a quiet title claim, not as a PRSA claim requiring a determination of marketable title. See supra ¶¶ 35--39. Consequently, we agree with Devon that the 5-year statute of limitation appearing in section 570.14(D) of the PRSA is inapplicable. Therefore, Trustees arguments about a specific statute governing over a more general statute are inapposite. ¶51 Nevertheless, the question remains what the appropriate statute of limitation is. Both the trial court and the Court of Civil Appeals found that the 15-year statute of limitation in 12 O.S.2011, § 93(4) applies to the Trust's quiet title claim based on the statutory language of the provision itself and on the utilization of that particular provision in the case of Pangaea Exploration Corp. v. Ryland, 2007 OK CIV APP 106, 173 P.3d 108. See supra notes 52, 86, 88, 94, 104 and accompanying text. We agree based on the plain language of section 93(4). ¶52 A quick review of the statutory provision and its context demonstrates that section 93(4) is the statute of limitation applicable to the Trust's quiet title claim. Chapter 3 in title 12 of the Oklahoma Statutes concerns "LIMITATION OF ACTIONS." 12 O.S.2011, ch. 3. Only two sections in the chapter specify the limitation periods that apply to different types of actions, i.e., sections 93 and 95. See id. Section 93 governs "[l]imitations of real actions," id. § 93; while section 95 governs the "[l]imitation of other actions" like claims based upon written contracts, unwritten contracts, trespass upon real property, conversion of personal property, personal injury, fraud, libel, slander, assault, battery, etc., see id. § 95(A) (listing examples of the types of claims mentioned in the first five of twelve paragraphs under subsection A). The relevant portions of section 93 state: § 93 -- Limitations of real actions Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter: (1) An action for the recovery of real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of district court in administration or probate proceedings, when brought by or on behalf of [certain enumerated persons] . . . within five (5) years after the date of [certain occurrences not relevant here] . . . . (2) An action for the recovery of real property sold by executors, administrators, or guardians, upon an order or judgment of a court directing such sale, brought by [certain enumerated persons] . . . within five (5) years after the date of recording of the deed made in pursuance of the sale. (3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed [subject to certain exceptions and provisos not relevant here] . . . . (4) An action for the recovery of real property not hereinbefore provided for, within fifteen (15) years. (5) An action for forcible entry and detention or forcible detention only of real property, within two (2) years. (6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed of judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date. Id. § 93. In their quiet title action, Trustees are seeking to recover the leasehold estate held under the 1973 Lease, so that their 1978 Lease will be valid and controlling. Thus, section 93 does apply. Because Trustees aren't seeking to recover real property sold on execution of a judgment or pursuant to partition proceedings, real property sold upon court order in a probate or guardianship case, or real property sold for taxes, their quiet title action is not governed by subsections (1), (2), or (3) of section 93. Instead, Trustees' claim falls under the catch-all provision in subsection (4) that governs all "action[s] for the recovery of real property not hereinbefore provided for." Thus, the applicable statute of limitation is 15 years. ¶53 We further find that Trustees' arguments concerning why the 1973 Lease should be canceled--e.g., that the 1978 Lease was an amendment or a novation of the 1973 Lease, that the merger-of-title doctrine should apply, or that Devon (as a defendant who doesn't bear the burden of proof) somehow failed to present sufficient evidence that the 1973 Lease had been held by continuous production, see supra notes 40, 44, 47, 59, 61, 67, 72, 85 and accompanying text--are all subject to this 15-year statute of limitation. Those arguments would serve as the basis for quieting title in favor of the Trust and against Devon. Thus, we agree with Devon's briefing at the certiorari stage that these "[c]oncepts of novation, modification, and merger are inherently quiet title disputes," Resp't's Answer to Pet. for Writ of Cert. 7, that are subject to section 93(4)'s 15-year statute of limitation. D. The Trial Court Properly Determined that the Trust's Quiet Title Claim Accrued More than 15 Years Ago. ¶54 Trustees' other follow-up question about applying a statute of limitation concerns "when it begins." Appellants' Pet. for Writ of Cert. 10. In other words, we must decide whether the trial court committed reversible legal error by implicitly holding that the Trust's quiet title claim accrued more than 15 years ago, which served as the basis for its explicit holding that the claim is now barred. ¶55 Of all the issues presented on certiorari, this issue receives the most attention from the parties. Yet again, Trustees rely upon the COCA dissent in support of their position: The dissent further argued that that the cause of action could not begin to run (at the earliest) until the oil and gas was produced and the royalty not properly paid on the Bernhardt wells, since the production from those later wells is the only issue before the trial court and this Court. The dissent correctly based its opinion on Claude C. Arnold Non-Operated Royalty Interest Props., L.L.C. v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817 . . . . The dissent argued that the relevant holding in Arnold is that a cause of action for a claim to royalties on new production does not accrue until a claim for payment is made for the proceeds related to the new production. The dissent quotes Arnold: "('No cause of action accrued until Arnold asserted its right to payment under the still-operative 1973 leases in 2012, and Cabot refused to pay.') On this basis alone, I would reverse the trial court's grant of summary judgment and review the plaintiffs' remaining allegations of error." Appellants' Pet. for Writ of Cert. 6 (quoting COCA's Op. ¶ 1, at 19 (Blackwell, J., dissenting)). Trustees also suggest that they were lulled into thinking that the 1978 Lease was in force and effect and applied to all wells drilled after its effective date, as demonstrated by the 3/16 royalty payments that the Trust received from Chesapeake on production from the Justice Well. See id. at 8--9. Therefore, Trustees never knew they needed to question royalty payments until Devon began paying the 1/8 royalty on production from the Bernhardt Wells. Id. at 8. Lastly, Trustees point to this Court's precedents in Nelson v. Daugherty, 1960 OK 205, 357 P.2d 425, and Harrison v. Eaves, 1942 OK 339, 130 P.2d 841 (per curiam), for the principles that "the limitations period d[oes] not begin to run until the legal effect of the conveyance is questioned or disputed" and that "the statute does not begin to run while both the grantor and the grantee are operating under the belief the deed said one thing, but they later learned it did not reflect their intentions due to a scrivener's error." Appellants' Pet. for Writ of Cert. 8 (quoting Pangaea Expl. Corp., 2007 OK CIV APP 106, ¶ 16, 173 P.3d at 113). By extension, Trustees argue that "[u]ntil [they] questioned the proper payment of the royalty by [Devon] on the new Bernhardt wells, no one had questioned the payment of the royalties even though payments were made using various royalties." Id. Thus, "the SOL would not begin to run until the [Trustees] questioned which royalty rate applied to the Bernhardt wells drilled by [Devon]." Id. ¶56 Devon counters each of these arguments. Devon argues that Trustees "misappl[y] Arnold" insofar as they suggest its holding "requir[es] a demand for payment before the statute of limitations can begin to run": In Arnold, Arnold had no role in drafting or recording the later-recorded leases (unlike here where the Plaintiff's predecessor and creator of the Eunice S. Justice Trust actually executed both leases), and the facts "indicated neither awareness nor acknowledgement of the [later-recorded] lease's effect on the oil-and-gas formation at issue." 2021 OK 4 at ¶¶ 9, 16. The Court reasoned that the claim for payment in Arnold was the first time the plaintiff was aware of the dispute. Id. That is far from applicable here, as Plaintiff admits as a matter of undisputed fact that she was aware of the application of the 1973 Lease to her interest since 1978, and every year since then. See Devon's Resp. To Pl. Suggestion of Newly Issued Case Law, incorporated herein. Resp't's Answer to Pet. for Writ of Cert. 4--5 (alteration in original). Devon further argues that Eunice's execution of both the 1978 Lease and the 1979 Division Order "establishes [her] actual knowledge" of "a basis to quiet title . . . so that the terms of the 1978 Lease [would be] applied to the lessor's interest rather than the 1973 Lease agreed to in the Division Order . . . by 1978." Id. at 5, 7--8. Thus, Devon believes the quiet title claim accrued in either 1978 or 1979. See id. at 7--8. Regarding Trustees' argument about receiving a 3/16 royalty payment on production from the Justice Well, Devon points out that Trustees are "not say[ing] that [they] w[ere] exclusively receiving a 3/16 royalty as of 2006," but are saying "that [they] also received a 3/16 royalty on one well, in addition to a 1/8 royalty on another well, highlighting the fact that the title dispute that began in 1978 was ongoing." Id. at 5. More specifically, "Chesapeake set up its pay decks differently for two separate wells: it attributed a 1/8 royalty to lessors in the 1978 Lena Shawver Well and a 3/16 royalty to lessors in the 2005 Justice Well." Id. at 6. By extension, Devon argues that it "is not a successor-in-interest to the well in which Chesapeake mistakenly credited Plaintiff with a 3/16 interest" and that "the reasons why Chesapeake (or any co-lessee) may have different title analysis could potentially apply as a relevant fact in a lawsuit against Chesapeake, but are entirely irrelevant to quiet title against Devon." Id. Finally, regarding Trustees' invocation of the Nelson and Harrison cases, Devon argues that the principles announced therein are "inapplicable" because "there is no question that Devon and its predecessors have acted contrary to Plaintiff's position and are not in agreement" and because "[t]here is no allegation or defense as to a scrivener's error." Id. at 5. ¶57 Upon weighing the parties' arguments, we conclude that the Trust's quiet title action accrued by at least 1979. "A cause of action accrues when the injury occurs." Calvert v. Swinford, 2016 OK 100, ¶ 11, 382 P.3d 1028, 1033. Said another way, "the statute of limitations begins to run when the cause of action accrues, and the true test to determine when the cause of action accrues is to ascertain the time when the plaintiff could first maintain his action to a successful result." Turner v. Sooner Oil & Gas Co., 1952 OK 171, ¶ 29, 243 P.2d 701, 705 (quoting Nat'l Bank of Claremore v. Jefferies, 1927 OK 278, ¶ 7, 259 P. 260, 261). Here, the alleged "injury" occurred once a second, contemporaneous oil and gas lease was executed and purportedly went into effect in 1978. Once two leases existed and were of record--whether the 1978 Lease could be characterized as a top lease or as a novation or amendment superseding the 1973 Lease--the two leases created a cloud on the competing leasehold interests and on Eunice's mineral interests. Furthermore, once the 1978 Lease purportedly went into effect, Eunice's continued receipt of the 1/8 royalty payments under the 1973 Lease constituted an injury. Either way, the undisputed material facts demonstrate the Trust's injury occurred in 1978, which means the quiet title claim accrued in 1978. Thus, the trial court did not err in finding that the 15-year statute of limitations in 12 O.S.2011, § 93(4) had run. ¶58 We do not accept Trustees' argument that the injury occurred in 2017 when Devon first paid them a 1/8 royalty on production from the Bernhardt Wells. Trustees' suggestion that "no one had [previously] questioned the payment of the royalties even though payments were made using various royalties" because "the parties recognized the 1/8 royalty in [the] 1973 Lease for wells drilled prior to December 4, 1978, and the 3/16 royalty in the 1978 Lease for wells drilled after December 4, 1978," is only a recent development at the certiorari stage. See Appellants' Pet. for Writ of Cert. 8--9. This suggestion is wholly inconsistent with earlier statements made by Trustees' attorney in prelitigation correspondence with the lessees for all three wells that "[t]he Second Lease . . . became effective on December 4, 1978 and all subsequent distributions should have been made based upon the 3/16ths royalty as provided in the Second Lease" and that "[m]y clients . . . should have been paid the 3/16th royalty on the Lena Shawver #1 effective December 4, 1978." See 11/22/2017 Letter to Chesapeake, supra note 19, at 1--2 (emphasis added); 11/22/2017 Letter to Devon, supra note 35, at 1 (emphasis added).120 It also runs contrary to Chesapeake's conclusion in prelitigation correspondence that "the lessor had nothing to lease when the second lease [i.e., the 1978 Lease] was executed" and that "Chesapeake would have a counterclaim against the trust" for overpayment of royalties. See supra note 82 and accompanying text. ¶59 We also find unpersuasive Trustees' argument that under Claude C. Arnold Non-Operated Royalty Interest Properties, L.L.C. v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817, no cause of action accrued until they asserted their right to a 3/16 royalty payment for production from the Bernhardt Wells and Devon refused to pay. Rather, we agree with Devon and with the COCA majority that the Arnold case is distinguishable from this case. ¶60 In Arnold, the plaintiff Claude C. Arnold Non-Operated Royalty Interest Properties, L.L.C. (hereinafter "Arnold") was the owner of an overriding royalty (ORR) interest that its predecessor-in-interest, Arnold Petroleum, Inc., reserved upon assignment of several leases executed in 1973. Id. ¶¶ 0, 5, 485 P.3d at 818--19. Prior to expiration of the primary term in 1976, the assignee's successor-in-interest, Harold Courson, drilled two vertical wells into the Chester formation, for which Arnold continually received ORR payments. Id. ¶ 5, 485 P.3d at 819. In 1984, Courson executed new leases that purported to cover the same rights as the original 1973 leases; but Arnold was never aware of the 1984 leases until 1999, when it received a letter from Courson about a third well being recompleted. Id. ¶ 6, 485 P.3d at 819. That third well had been drilled under the 1984 leases by Natural Gas Anadarko, Inc. into the separate Lower Chester formation, and Courson explained to Arnold's representative that the 1984 leases covered only the "lower depths" that weren't covered by the 1973 leases. Id. In 2011, Courson assigned his leases to the defendant, Cabot Oil & Gas Corporation, who then drilled two horizontal wells into a different formation, i.e., the Marmaton formation. Id. ¶ 7, 485 P.3d at 819. In 2012, Arnold contacted Cabot to request payment of its ORR interest on production from the new wells, taking the position that its rights in the Marmaton formation were held by virtue of certain provisions in the 1973 leases. Id. ¶ 7, 485 P.3d at 819--20. Cabot refused payment, precipitating Arnold's lawsuit to quiet title as to the Marmaton formation in its favor. Id. ¶ 8, 485 P.3d at 820. Cabot argued Arnold's claims were barred under the applicable 15-year statute of limitation in 12 O.S.2011, § 93(4) because the cloud over plaintiff's ORR interest was created when the 1984 leases were filed. Id. The trial court determined that Arnold's cause of action accrued in 2012, when Arnold requested payment from Cabot. Id. On appeal we affirmed the trial court, finding that "no injury occurred to Arnold before July 2012, when it first requested payment of its overriding royalty interest" and that "[n]o cause of action accrued until Arnold asserted its right to payment under the still-operative 1973 leases in 2012, and Cabot refused to pay." Id. ¶¶ 12--13, 485 P.3d at 821. This, of course, is the language that Trustees latch onto in their argument about when their claim accrued. ¶61 Central to our holding in the Arnold case was our determination that "Arnold had no role in drafting or recording the 1984 leases, which were entirely silent about the Marmaton formation. This compels us to wonder what injury--or what 'cloud'--the plaintiffs should have reasonably been expected to uncover in 1984, in 1999, or at the start of 2012. . . . From 1984 to 2012, nothing could reasonably alert even a sophisticated party like Arnold about an adverse claim to its Marmaton interest." Id. ¶ 16, 485 P.3d at 822. The fact that Arnold played no part in executing or recording the subsequent leases "set[] th[e] case apart from the situation discussed in our . . . decisions in Scott v. Peters, 2016 OK 108, 388 P.3d 699, and Calvert v. Swinford, 2016 OK 100, 382 P.3d 1028. In those cases, the plaintiffs attempting to avoid the effect of the statute of limitations were the grantors of the mineral deeds in question. There, we held the statute-of-limitations period began to run when the deeds were filed with the county clerk. It is completely reasonable to expect that the grantor who negotiates, reads, and signs the instrument should be 'on notice' of what it says from the time of filing onward." Arnold, 2021 OK 4, ¶ 15, 485 P.3d at 822 (second emphasis added). ¶62 The present case is more akin to Calvert and Scott than to Arnold. Eunice executed both the 1973 Lease and the 1978 Lease. Thus, it is reasonable to expect that she--as lessor who negotiated, read, and signed both leases--should be on notice of the potential conflict between the two leases and the cloud created when the second lease purportedly became effective. We cannot say, as we did in Arnold, that Eunice played no role in drafting or recording the second lease. For these reasons, we find Trustees' reliance upon the Arnold case unpersuasive. ¶63 Similarly, we find unpersuasive Trustees' argument that under Nelson v. Daugherty, 1960 OK 205, 357 P.2d 425, and Harrison v. Eaves, 1942 OK 339, 130 P.2d 841 (per curiam), the 15-year statute of limitation did not begin to run until they questioned or disputed the legal effect of the conveying instruments (i.e., the 1973 Lease and the 1978 Lease) in 2017. Those cases involved equitable claims to reform either a deed or a trust, respectively, that contained a typographical error and the equitable tolling of the applicable statute of limitation on account of mutual mistake. See Nelson, 1960 OK 205, ¶¶ 6, 28, 33--34, 357 P.2d at 427, 432--34, discussed in Scott, 2016 OK 108, ¶¶ 16--18 & n.10, 388 P.3d at 703 & n.10; Harrison, 1942 OK 339, ¶¶ 1--2, 8, 130 P.2d at 843--44, cited in Calvert, 2016 OK 100, ¶ 16 n.36, 382 P.3d at 1035 n.36. As Devon points out, Trustees have not alleged the existence of any scrivener's error in the 1978 Lease, and the conduct of the parties does not support an argument of mutual mistake. E. The Trial Court's Denial of Trustees' Motion to Compel Production of Title Opinions Need Not Be Reversed. ¶64 For their last issue raised on certiorari, Trustees ask "whether a trial court can determine when any S[tatute ]O[f ]L[imitations] period begins without the benefit of reviewing a title opinion or other similar record reflecting marketable title--as required by the PRSA--before production payment decisions can be made." Appellants' Pet. for Writ of Cert. 10. In other words, they want us to decide whether the trial court committed legal error by failing to grant their motion to compel Devon's production of the various title opinions in their possession. ¶65 We need not reach that issue. We have already observed that the issue of whether Trustees hold marketable title is distinct from the issue of which lease controls between the 1973 Lease and the 1978 Lease, that Trustees' establishment of "marketable title" would not help in narrowing down which lease controls, and that the parties don't even dispute whether the Trust has marketable title as demonstrated by Devon's payment of royalties to the Trust. See supra ¶ 38. Thus, Trustees' justification for production of the title opinions--i.e., that the title opinions were relevant for determining whether "marketable title" exists--is null and void. Moreover, in light of our determination that Trustees' quiet title claim is barred by the applicable statute of limitation, see supra ¶ 57, Trustees' PRSA claims for accounting and back-payment on underpaid royalties fail by extension because--as previously argued by Devon and admitted by Trustees--those PRSA claims are derivative and therefore dependent on the survival of their quiet title claim. See supra notes 56, 74 and accompanying text. Thus, the only claims to which the title opinions are relevant have been wiped out. Consequently, there is no basis for reversing the trial court's denial of Trustees' motion to compel. IV. CONCLUSION ¶66 In conclusion, we determine that the trial court did not err in applying a statute of limitation, in general, to Trustees' quiet title claim; that the trial court did not err in applying the 15-year statute of limitation from 12 O.S.2011, § 93(4), in particular, to Trustees' quiet title claim; that the trial court did not err in determining that the Trustees' quiet title claim accrued more than 15 years ago; and that the trial court did not err in denying Trustees' motion to compel the production of various title opinions in Devon's possession. A de novo review of the record shows the trial court's decision granting Devon's motion for summary judgment must be affirmed. Because the trial court correctly granted summary judgment, the trial court did not abuse its discretion in denying Trustees' motion for new trial. OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH, and DARBY, JJ., concur. ROWE, V.C.J., and KUEHN, J. (by separate writing), concur in result. KANE, C.J., dissents. FOOTNOTES 1 ROA, Doc. 2, Pet. ¶ 20, at 4 [hereinafter Pet.]. 2 Id. ¶¶ 19--20, at 4; id. at Ex. D, Warranty Deed 1 (Apr. 6, 1990) (wherein Eunice and her husband conveyed their land and mineral interests in the N/2 NE/4 of Section 8-15N-9W to the Eunice S. Justice 1990 Revocable Trust under Agreement dated the 12th day March 1990); id. at Ex. E, Kaye Frances Base's Aff. of Successor Trustee ¶¶ 2--3, at 1 (May 31, 2016) (summarizing the revisions made to the Trust in 2011). 3 ROA, Doc. 5, Def.'s Mot. Summ. J. ¶ 4, at 3 [hereinafter Def.'s Mot. Summ. J.]; id. at Ex. 2, Quit Claim Deed 1 (June 16, 1977); ROA, Doc. 6, Pls.' Resp. to Def.'s Mot. Summ. J. ¶ 4, at 5 [hereinafter Pls.' Resp.]. 4 Def.'s Mot. Summ. J., supra note 3, ¶ 2, at 1--2; id. at Ex. 1, Oil & Gas Lease 1 (Dec. 4, 1973) [hereinafter 1973 Lease]; Pls.' Resp., supra note 3, ¶ 2, at 7. 5 Def.'s Mot. Summ. J., supra note 3, ¶ 2, at 1--2; 1973 Lease, supra note 4, ¶ 2, at 1; Pls.' Resp., supra note 3, ¶ 2, at 7. 6 Def.'s Mot. Summ. J., supra note 3, ¶ 2, at 1--2; 1973 Lease, supra note 4, ¶ 4, at 1; Pls.' Resp., supra note 3, ¶ 2, at 7. 7 Def.'s Mot. Summ. J., supra note 3, ¶ 5, at 3; id. at Ex. 3, Assignment & Conveyance 1, 3 (Aug. 1, 1977); Pls.' Resp., supra note 3, ¶ 5, at 5. 8 Def.'s Mot. Summ. J., supra note 3, ¶ 6, at 3; id. at Ex. 4, Oil & Gas Lease 1 (July 24, 1978) [hereinafter 1978 Lease]. 9 Def.'s Mot. Summ. J., supra note 3, ¶ 6, at 3 & n.2; 1978 Lease, supra note 8, ¶¶ 2, 5, at 1. 10 Def.'s Mot. Summ. J., supra note 3, ¶ 6, at 3; 1978 Lease, supra note 8, ¶¶ 3--4, at 1. 11 See Def.'s Mot. Summ. J., supra note 3, at Ex. 5, Okla. Corp. Comm'n Completion Report (Form 1002A) at 1 (Jan. 29, 1979) [hereinafter Form 1002A]; Pls.' Resp., supra note 3, ¶ 22, at 12; id. at Ex. 10, OCC Records Pertaining to Petro-Lewis Corp. 1 [hereinafter OCC's Records on Petro-Lewis Corp.] (showing that Petro-Lewis Corp. filed an application to pool drilling rights in Section 8-15N-9W on June 12, 1978); id. at Ex. 20, OCC Records for Lena Shawver #1 & Justice #1-8, at 31 [hereinafter OCC's Records for Wells] (showing a Notice of Change of Operator (Form 1073) that transferred operations from Petro Lewis Corp. to NICOR Exploration Corp. effective May 24, 1985). 12 Form 1002A, supra note 11, at 1 (showing the location of the well in the N/2 NE/4 of Section 8-15N-9W); Pls.' Resp., supra note 3, ¶ 13, at 9; OCC's Records on Petro-Lewis Corp., supra note 11, at 10--13 (showing the pooling order entered by the Corporation Commission). 13 Def.'s Mot. Summ. J., supra note 3, ¶ 7, at 3; Form 1002A, supra note 11, at 1. 14 Def.'s Mot. Summ. J., supra note 3, ¶ 7, at 3; Form 1002A, supra note 11, at 1. 15 Def.'s Mot. Summ. J., supra note 3, ¶ 10, at 4; id. at Ex. 9, Gas Division Order 1 (July 6, 1979) [hereinafter 1979 Gas Division Order]. 16 Id. at Ex. 9, Gas Division Order 1 (Nov. 6, 1980) [hereinafter 1980 Gas Division Order]. 17 See Pls.' Resp., supra note 3, at Ex. 26, Division Orders & Other Docs. 19--20 [hereinafter Division Orders & Other Docs.] (showing a Division Order from NICOR Exploration Company signed by Eunice). 18 See 1979 Gas Division Order, supra note 15, at 1; 1980 Gas Division Order, supra note 16, at 1. 19 Def.'s Mot. Summ. J., supra note 3, ¶ 11, at 4 (asserting that Eunice "accept[ed] royalty payments pursuant to the 1973 Lease for well over 15 years"); id. at Ex. 10, Payments Spreadsheet (summarizing payments for production from the Shawver Well between February 25, 2002, and December 31, 2018, at a decimal royalty interest of 0.01562500); Pls.' Resp., supra note 3, ¶ 11, at 6 (disputing whether "the 1/8 royalty term is the proper royalty term" but not disputing that Eunice had received payments for a 1/8 royalty); id. at Ex. 2, 11/22/2017 Letter from Richard K. Goodwin to Chesapeake Operating, Inc. & Gastar Exploration 2 [hereinafter 11/22/2017 Letter to Chesapeake] (wherein the Trust's attorney concedes that "[his] clients have been paid a 1/8th royalty on the Lena Shawver #1 production"). 20 11/22/2017 Letter to Chesapeake, supra note 19, at 2 (wherein the Trust's attorney concedes that "[his] clients have been paid a 1/8th royalty on the Lena Shawver #1 production"); Pls.' Resp., supra note 3, at Ex. 21, Concho Revenue 1 (showing a royalty payment that Concho Exploration, Inc. made on March 22, 2004, for production from the Shawver Well using a decimal interest of 0.01562500); id. at Ex. 25, Chesapeake Revenues 1--3, 10, 19, 42, 67, 71, 73, 75--77, 79--80, 82 [hereinafter Chesapeake Revenues] (showing royalty payments that Chesapeake Operating Inc. made over a sixteen-year course--i.e., in December 2004, October 2005, July 2007, November 2008, July 2009, June 2011, December 2014, May 2016, June 2017, January 2019, March 2019, May 2019, July 2019, November 2019, and February 2020--for production from the Shawver Well using a decimal interest of 0.01562500); id. at Ex. 22, Mustang Revenues 1--119 (showing royalty payments that Mustang Gas Products, LLC made on an almost monthly basis during 2006, 2007, 2009, 2010, 2011, 2012, 2013, 2014, the first half of 2015, the last half of 2019, and the first half of 2020 for production from the Shawver Well using a decimal interest of 0.0208333, which would be equivalent to a 1/6 royalty on half of a quarter--i.e., the N/2 of the NE/4--of Section 8-15N-9W); see also Divisions Orders & Other Docs., supra note 17, at 17 (showing a Division Order from Mustang Gas Products, LLC signed by Kaye Base as Trustee that lists a royalty interest of 0.02083330 on production from the Shawver Well). 21 See Def.'s Mot. Summ. J., supra note 3, ¶ 8, at 4; id. at Ex. 6, Assignment of Overriding Royalty Interest 1, 3 (Nov. 7, 1978) (wherein Petro-Lewis Funds, Inc. assigned an over-riding royalty interest in the 1978 Lease to Petro-Lewis Agency Corp.); id. at Ex. 7, Assignment of Oil & Gas Lease 1, 3 (Mar. 22, 1979) (wherein Petro-Lewis Funds, Inc. and Petro-Lewis Agency Corp. assigned all their interests as lessee under the 1978 Lease to Partnership Properties Co.); Pls.' Resp., supra note 3, ¶ 8, at 5 ("Plaintiff [sic] agree that on March 22, 1979 Partnership Properties, Inc. was the owner of both the 1973 Lease and the 1978 Lease."); id. ¶ 11, at 8 ("Based on the above, on March 22, 1979, all of the 1973 Lease and the 1978 Lease were owned by Partnership Properties Co."). Despite the parties' agreement on this fact, the record on appeal seems to suggest that Petro-Lewis Funds, Inc. retained an interest in the Shawver Well and its formation until 1985, when all rights under the 1973 Lease were assigned, sold, and conveyed to Nicor Exploration Company. See Def.'s Mot. Summ. J., supra note 3, at Ex. 8, 1973 Lease Run Sheet 1 [hereinafter 1973 Lease Run Sheet] (discussing an assignment made April 4, 1979, wherein Partnership Properties Co. purported to make a limited assignment of its interests under the 1973 Lease in the Chester formation to Petro-Lewis Funds, Inc. effective as of November 27, 1978--i.e., the date of the Shawver Well's first production from the Chester formation--but reserving all interests under the 1973 Lease in other formations); Pls.' Resp., supra note 3, at Ex. 6, Assignment of Oil & Gas Leases dated 04-05-79, at 1; id. at Ex. 19, Assignment, Bill of Sale & Conveyance dated 1/1/85, at 1, 7. 22 Def.'s Mot. Summ. J., supra note 3, ¶ 9, at 4; 1973 Lease Run Sheet, supra note 21, at 1; Pls.' Resp., supra note 3, ¶ 9, at 6 (failing to dispute that since 1979 a total of 56 assignments were made of the 1973 Lease alone); id. at Ex. 6, Assignment of Oil & Gas Leases dated 04-05-79, at 1; id. at Ex. 15, Assignment, Bill of Sale & Conveyance (LVP) effective 12/31/84, at 1, 10 (wherein all of the Petro-Lewis entities assigned, sold, and conveyed their interests in the 1973 Lease (i.e., Book 492, Page 266) to PLC-ARPC, Inc.); id. at Ex. 19, Assignment, Bill of Sale & Conveyance dated 1/1/85, at 1, 7 (wherein Partnership Properties Co., Petro-Lewis Corp., Petro-Lewis Funds Inc., and PLC-ARPC, Inc. assigned, sold, and conveyed their interests in the 1973 Lease (i.e., Book 492, Page 266) to NICOR Exploration Company). 23 Pls.' Resp., supra note 3, ¶ 22, at 12; OCC's Records for Wells, supra note 11, at 37 (showing a Form 1073 that transferred operations of the Shawver Well from Concho Exploration Inc. to Chesapeake Operating Inc. on June 4, 2004). 24 See 1973 Lease Run Sheet, supra note 21, at 2 (explaining that a predecessor-in-interest under the 1973 Lease and previous operator, Ricks Exploration, Inc., assigned all its interests under the 1973 Lease in May of 2000 to Ricks Exploration II, L.P., who later "merged into Concho Oil and Gas, which Concho merged with Chesapeake"; also showing assignments made in 2005 and 2006 to Chesapeake Exploration Limited Partnership). 25 OCC's Records for Wells, supra note 11, at 4 (showing an Application to Drill, Recomplete or Reenter (Form 1000) that Chesapeake filed with the Corporation Commission on August 30, 2007, to drill the Justice #1-8 well to a depth of 11,315 feet--at least 2,500 feet deeper than the Mississippi Chester Lime). 26 Pls.' Resp., supra note 3, ¶ 21, at 12; OCC's Records for Wells, supra note 11, at 17 (showing the Completion Report (Form 1002A) for the Justice Well). 27 OCC's Records for Wells, supra note 11, at 17. 28 Division Orders & Other Docs., supra note 17, at 2--3 (showing a division order from Chesapeake signed by Eunice on behalf of the Trust). 29 Pls.' Resp., supra note 3, ¶ 11, at 6 (stating that "Plaintiffs received a 3/16 royalty from other operators pursuant to the 1978 Lease"); 11/22/2017 Letter to Chesapeake, supra note 19, at 2 (wherein the Trust's attorney states that "[his] clients have been paid . . . a 3/16th royalty on the Justice #1-8 well"); id. at Ex. 23, Gastar Revenues 1--55 (showing royalty payments that Gastar Exploration LLC made over a six-year course--i.e., payments on a monthly basis from September 2013 to January 2018 and additional payments in November 2018, March 2019, and August 2019--for production from the Justice Well using a decimal interest of 0.02343750, which is equivalent to a 3/16 royalty interest on half of a quarter--i.e., the N/2 of the NE/4--of Section 8-15N-9W); Chesapeake Revenues, supra note 20, at 4--9, 11--18, 20--39, 41, 43--66, 68--71 (showing royalty payments that Chesapeake made over a eight-year course--i.e., payments on a monthly basis from June 2008 to June 2013 and additional payments in December 2014, May 2015, August 2015, and May 2016--for production from the Justice Well using a decimal interest of 0.02343750). 30 See 1973 Lease Run Sheet, supra note 21, at 1--3 (showing a 1995 assignment from Ricks Exploration to Twister Gas Services LLC inter alia, a 2010 assignment from Twister Gas Services LLC to Wynn-Crosby Partners II Ltd., a 2015 assignment from Wynn-Crosby Partners II Ltd. to Felix Energy LLC, and two 2015 assignments from Felix Energy LLC to Felix Energy Holdings LLC); Division Orders & Other Docs., supra note 17, at 26 (showing a letter from Devon to Trustees dated April 29, 2016, wherein Devon stated that it "ha[d] recently acquired assets from Felix Energy, LLC located in Kingfisher, Custer, Blaine, Dewey and Canadian Counties, Oklahoma"); Pls.' Resp., supra note 3, at Ex. 27, Articles of Merger 1--4 (showing Articles of Merger and a Certificate of Merger that state Felix Energy, LLC and Felix Energy Holdings, LLC were merged into Devon effective January 12, 2016); Def.'s Mot. Summ. J., supra note 3, ¶ 1, at 2 ("Devon is the owner of a leasehold interest in the N/2 NE/4 of Section 8, Township 15 North, Range 9 West, Kingfisher County, Oklahoma (the "Subject Property") by virtue of the Oil and Gas Lease, dated December 4, 1973 (the "1973 Lease"), between Lena Shawver (life tenant) and Eunice S. Justice (remainderman) as lessors, and the Rodman Corporation as lessee. . . . Devon is a successor in interest to the lessee of the 1973 Lease."); ROA, Doc. 11, Def.'s Reply in Support of Its Mot. Summ. J. 8 & Ex. 12 [hereinafter Def.'s Reply] (asserting that Devon owns an interest in the 1973 Lease and attaching a copy of the Certificate of Merger filed in the Kingfisher County Clerk's land records at Book 2854, Pages 463--467). 31 See Def.'s Mot. Summ. J., supra note 3, at 1--2; see also ROA, Doc. 12, Def.'s Resp. to Pl.'s [sic] Mot. to Compel 1 [hereinafter Def.'s Resp. to Pls.' Mot. to Compel] (showing that Felix Energy, LLC had obtained a drilling title opinion concerning the Bernhardt Wells in June of 2015). 32 Id. at 1--2 & n.1. Devon apparently drilled a ninth well also--i.e., the Bernhardt 8_5-15N-9W 10HX well--but plugged that well in May of 2019. Id. at 2 n.1. The record on appeal reveals that the Bernhardt 8_5-15N-9W 1HX well was spud in Section 17-15N-9W of Kingfisher County, but the multi-unit horizontal well extends north into the 640-acre spacing unit in Section 8-15N-9W. See Pls.' Resp., supra note 3, at Ex. 24, Devon Revenues 2 [hereinafter Devon Revenues]. Although it is not clear from the record on appeal where the other seven producing wells were spud, the parties do not dispute that the Bernhardt Wells are producing at least in part from the 640-acre spacing unit in Section 8-15N-9W. Pet., supra note 1, ¶ 2, at 2 (wherein the Trust alleges that "[t]he Bernhardt Wells are producing from the common sources of supply that have been spaced as 640-acre drilling and spacing units covering all of said Section 8"); ROA, Doc. 4, Am. Answer of Def. ¶ 2, at 1 [hereinafter Am. Answer of Def.] (wherein Devon "admits that the Bernhardt Wells are producing from common sources of supply that have been spaced as 640-acre drilling and spacing units covering all of Section 8"). 33 See Devon Revenues, supra note 32, at 2--5; Pet., supra note 1, ¶ 14, at 3. But see Am. Answer of Def., supra note 32, ¶ 14, at 2 (denying either that the Bernhardt Wells commenced producing on July 3, 2017, or that production continues to this day). 34 The decimal interest listed in Devon's payment records for the Bernhardt 8_5-15N-9W 1HX well is 0.00750313. Devon Revenues, supra note 32, at 2--5. That decimal interest is equivalent to a 1/8 royalty payment because Section 8 is allocated 48.02% of the production from this multi-unit well that stretches over three sections (i.e., Sections 5, 8, and 17) in Township 15 North, Range 9 West. See ROA, Doc. 9, Pls.' Mot. for Leave of Ct. to Suppl. Pls.' Resp. to Def.'s Mot. Summ. J. at Ex. S, E-mail Report 4 (wherein Sandra Stewart, a Senior Division Order Analyst for Devon, explained the decimal interest to Trustee Kaye Base by e-mail dated October 19, 2017). Thus, for production from the Bernhardt 8_5-15N-9W 1HX well, Devon is paying the Trust 48.02% of a 1/8 royalty payment for half (N/2) of one-quarter (NE/4) of Section 8--i.e., 0.4802 × 1/8 × 1/2 × 1/4 = 0.00750313. 35 In both prelitigation letters and their petition, Trustees claim that Devon has been paying the Trust a 1/8 royalty payment on production from all the Bernhardt Wells pursuant to the 1973 Lease. See Pet., supra note 1, ¶ 15, at 3 (wherein the Trust alleges that "Devon has been paying to the Plaintiffs revenue from production based on a 1/8 royalty on the Bernhardt Wells from the date of first production to the present"); 11/22/2017 Letter to Chesapeake, supra note 19, at 1 (wherein the Trustees' attorney tells Chesapeake that "Devon credits my clients with the 1/8th royalty stated in the Fist Lease"); Pls.' Resp., supra note 3, at Ex. 3, 11/22/2017 Letter from Richard K. Goodwin to Devon Energy Prod. Co. LP 1 [hereinafter 11/22/2017 Letter to Devon] (wherein the Trustees' attorney faults Devon because the Division Order Title Opinion upon which Devon relies "credits my clients with the 1/8th royalty stated in the First Lease"). In its answer, however, Devon inexplicably denies that its payments to the Trust have been "based on a 1/8 royalty on the Bernhardt Wells from the date of first production to the present," see Am. Answer of Def., supra note 32, ¶ 15, at 2, but fails to suggest an alternative royalty interest upon which its payments have been based. The parties have not included in the record on appeal a proposed Division Order for any of the Bernhardt Wells, which presumably would have shed some light on the decimal interests for the other seven wells. 36 See 11/22/2017 Letter to Chesapeake, supra note 19, at 1 (mentioning "division orders received from Devon"). Incidentally, it appears the Trustees never signed Devon's proposed division order. See Pls.' Resp., supra note 3, at 16 (" . . . Plaintiffs have not signed any division order submitted by Devon."). 37 See 11/22/2017 Letter to Devon, supra note 35, at 1 (implying that previous correspondence had requested a title opinion that Devon had since provided). 38 See Pls.' Resp., supra note 3, at Ex. 1, 10/25/2017 Letter from Richard K. Goodwin to Chesapeake Operating, Inc. et al. 1 ("Please provide the relevant portions of the Division Order Title Opinion(s) for the Justice #1-8 well involving the Justice interest."); 11/22/2017 Letter to Chesapeake, supra note 19, at 1 ("By letter dated October 25, 2017, I requested copies of the title opinion for the Justice #1-8 well. I have not received any response to my letter. By this letter I am requesting copies of all title opinions in your possession or available to you covering Section 8-15N-9W, Kingfisher County, Oklahoma, including but not limited to any opinions covering the above described wells [i.e., the Lena Shawver #1 well and the Justice #1-8 well]."). 39 11/22/2017 Letter to Devon, supra note 35, at 1--3 ("You have supplied a copy of portions of the Division Order Title Opinion dated September 27, 2017 from Walker, Ferguson & Ferguson (Opinion) . . . . I was provided with pages 1, 8, 9, 10, and 58 of the Opinion. . . . Prior to taking any legal action, I would like to review complete copies of all available title opinions for Section 8. I have requested title opinions from Chesapeake Operating, Inc. and Gastar Exploration Inc. They have not responded to my request. I would request a complete copy of any title opinions in your possession or available to you covering Section 8-15N-9W, Kingfisher County, Oklahoma."). 40 Id. at 2; see also Pls.' Resp., supra note 3, at Ex. 4, 03/22/2018 Letter from Richard K. Goodwin to Devon Energy Prod. Co. LP 1--2 [hereinafter 03/22/2018 Letter to Devon] (advancing the same argument: "Based on the prior opinions and the pooling actions by Petro-Lewis Corporation in Cause CD No. 780005848 and the applicable Oklahoma statutes and case law, the oil and gas lease at Book 601, Page 425 [i.e., the 1978 Lease], either amended or replaced the prior oil and gas lease at Book 492, Page 266 [i.e., the 1973 Lease]."). 41 11/22/2017 Letter to Devon, supra note 35, at 2; 03/22/2018 Letter to Devon, supra note 40, at 2--3 (advancing the same argument: "Pooling order No. 143396 dated July 21, 1978 is enclosed. The applicant was Petro-Lewis Corporation. Paragraph 4 of the Findings states: '4. That Applicant is the owner of drilling rights in said Section 8 and proposes, as operator, to drill a well . . .' From my review of the lease and assignment analysis made in the opinions, Petro-Lewis Corporation never acquired any title to any oil and gas lease. I cannot recall the names of all of the Petro-Lewis entities, but I would be certain that Petro-Lewis Corporation or maybe Petro-Lewis Funds, Inc. controlled all of the various entities, including Partnership Properties Co. All of the Petro-Lewis organization should and would be considered one and the same such that the second oil and gas lease was a substitution of the first lease or a modification of the first leases [sic] or novation of the first lease."). 42 Pls.' Resp., supra note 3, at Ex. 9, 04/05/2018 Letter from Cherish K. Ralls, Devon Energy Prod. Co., L.P., to Richard K. Goodwin 1; see also ROA, Doc. 8, Pls.' Mot. to Compel at Ex. G, Devon's Privilege Log 1 (disclosing that Devon possessed the October 2006 title opinion for the Justice Well prepared for Chesapeake by Wright & Associates, P.C.); Def.'s Resp. to Pls.' Mot. to Compel, supra note 31, at Ex. 6, Devon's Am. Privilege Log 1 (disclosing that Devon possessed the June 2015 title opinion for the Bernhardt Wells prepared for Felix Energy, LLC by Deen & Garretson, and the September 2017 title opinion for the Bernhardt Wells prepared for Devon by Walker Ferguson & Ferguson, and the November 2017 supplemental title opinion prepared for Devon by Walker Ferguson & Ferguson). 43 Pet., supra note 1, at 1. 44 Id. ¶¶ 22--25, at 5. 45 Id. ¶¶ 26--28, at 5. 46 Id. ¶¶ 29--31, at 6. 47 Id. ¶ 24, at 5. 48 ROA, Doc. 3, Answer of Def. 1 [hereinafter Answer of Def.]; Am. Answer of Def., supra note 32, at 1. 49 Answer of Def. 1, supra note 48, ¶¶ 3, 6, 13, at 5--6; Am. Answer of Def., supra note 32, ¶¶ 3, 6, 14, at 5--6. 50 See ROA, Doc. 8, Pls.' Mot. to Compel ¶¶ 7--16, at 2--4 [hereinafter Pls.' Mot. to Compel] (summarizing the exchange of written discovery from May 15, 2019, to December 17, 2019). 51 Def.'s Mot. Summ. J., supra note 3, at 1. 52 Id. at 1, 5 (citing 12 O.S.2011, § 93(4); Pangaea Expl. Corp. v. Ryland, 2007 OK CIV APP 106, ¶¶ 11--12, 173 P.3d 108, 112). 53 Id. at 1, 5; see supra note 15 and accompanying text. 54 Def.'s Mot. Summ. J., supra note 3, at 5. 55 Id. at 6. 56 Id. at 7. 57 Pls.' Resp., supra note 3, at 1. 58 Id. at 14 ("Of the eleven (11) 'undisputed' facts asserted by Plaintiff [sic] in support of summary judgment, Plaintiffs dispute all or part of nine (9) of them."). 59 Id. ¶¶ 1--3, 7, 11, at 5--6 (challenging Undisputed Facts # 1, 2, 3, 7, and 11). 60 Id. ¶ 6, at 5 (challenging Undisputed Fact # 6). 61 Id. ¶ 7, at 5 (challenging Undisputed Fact # 7). 62 Id. ¶ 10, at 6 (challenging Undisputed Fact # 10). 63 Id. at 14. 64 Id. ¶¶ 13--20, at 9--12. 65 Id. at 4--5; see also supra notes 20, 29 and accompanying text (listing exhibits to Trustees' summary judgment response that show what royalty payments the Trust received on the Shawver Well and the Justice Well). 66 Pls.' Resp., supra note 3, at 18. 67 Id. at 1--2, 15. 68 Id. at 2. 69 Id. at 16. 70 Id. at 19. 71 Id. at 17 (citing 3 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 39.5 (2010)). 72 Id. at 20. 73 Id. at 15; see also id. at 14, 16 ("At its core, this case is a dispute over the proper royalty rate to be paid to Plaintiffs on the Bernhardt wells. It is not a dispute over the royalty paid on the Lena Shawver #1 well or the Justice 1-8 well. . . . Plaintiffs are not seeking any change, at this time, to the distributions for the older wells, Lena Shawver #1 and Justice 1-8 -- just the new Bernhardt Wells."). 74 Id. at 20. 75 Pls.' Mot. to Compel, supra note 50, at 11. 76 ROA, Doc. 9, Pls.' Mot. for Leave of Ct. to Suppl. Pls.' Resp. to Def.'s Mot. Summ. J. 14. 77 Def.'s Reply, supra note 30, at 1--2. 78 Id. at 2--3. 79 Id. at 4--6. 80 Id. at 7. 81 Id. at 7--8. 82 Id. at 6--7; id. at Ex. 11, 01/29/2018 Letter from Jason P. Blose, Managing Att'y, Chesapeake Energy Corp., to Richard K. Goodwin, Esq. 1. 83 ROA, Doc. 10, Def.'s Resp. to Pl.'s [sic] Mot. for Leave to Suppl. Its [sic] Resp. & Mot. to Strike 1; Def.'s Resp. to Pls.' Mot. to Compel, supra note 31, at 1. 84 ROA, Doc. 15, Tr. of Proceedings 4:24--5:2, 7:4--:9, 8:2--9:2, July 15, 2020. 85 Id. at 4:6--:13, 5:6--:8. 86 Id. at 6:2--:13. 87 Id. at 6:15--7:1, 7:18--:22. 88 Id. at 9:7--:14. 89 Id. at 9:20--:22. 90 Id. at 9:23. 91 Id. at 10:6--:11. 92 Id. at 10:13--:18. 93 See ROA, Doc. 16, Pls.' Mot. in Supp. of Pls.' Proposed Order Denying Pls.' Mot. to Compel 1; ROA, Doc. 17, Pls.' Mot. in Supp. of Pls.' Proposed Order Denying Pls.' Mot. for Leave of Ct. to Suppl. Its Resp. to Def.'s Mot. Summ. J. 1; ROA, Doc. 18, Pls.' Mot. in Supp. of Pls.' Proposed Order Granting Def.'s Mot. Summ. J. 1; ROA, Doc. 19, Def.'s Consol. Resp. & Cross Mot. to Settle 1. 94 See ROA, Doc. 20, Order Denying Pl.'s [sic] Mot. for Leave of Ct. to Suppl. Its Resp. to Def.'s Mot. Summ. J. 1; ROA, Doc. 21, Order Denying Pl.'s [sic] Mot. to Compel ¶ 2, at 1; ROA, Doc. 22, Order Granting Def.'s Mot. Summ. J. ¶ 2, at 1; ROA, Doc. 24, Tr. of Mot. to Settle Proceedings 2:24--3:5, Oct. 14, 2020. 95 ROA, Doc. 23, Pls.' Mot. for New Trial 2. 96 ROA, Doc. 25, Tr. of Proceedings 3:11--:13, Jan. 13, 2021; ROA, Doc. 26, Order Denying Motion for New Trial 1. 97 Pet. in Error 2. 98 Order Sheet 1, Mar. 17, 2021. 99 COCA's Op. ¶ 1, at 2. 100 See id. ¶ 21, at 10--11. 101 See id. ¶ 24, at 12 (citing 12 O.S.2011, § 93(4); Pangaea Expl. Corp. v. Ryland, 2007 OK CIV APP 106, ¶¶ 11--12, 173 P.3d 108, 112). 102 See id. ¶ 30, at 15. 103 Id. ¶ 33, at 17. 104 Id. ¶¶ 32--33, at 16--17. 105 Id. ¶ 34, at 18. 106 Id. ¶¶ 32--33, at 16--17. 107 Id. ¶ 1, at 18 (Blackwell, J., dissenting). 108 Id. (citing Arnold, 2021 OK 4, ¶ 13, 485 P.3d at 821). 109 Id. ¶ 1 & n.1, at 19. 110 Id. ¶ 2, at 19 (citing 12 O.S.2011, §§ 1141--1142 to demonstrate the distinction between actions to quiet title and actions to recover real property). 111 Id. ¶ 2, at 20--21 (citing Hester, 1950 OK 131, ¶ 10, 218 P.2d at 643; Bd. of Cty. Comm'rs of Choctaw Cty. v. Schuessler, 1960 OK 252, ¶ 24, 358 P.2d 830, 835; Alfrey, 1951 OK 133, ¶ 0 (Syllabus # 4), 231 P.2d at 364; Paddyaker v. Griffith, 2011 OK CIV APP 97, ¶ 8, 260 P.3d 1276, 1278). 112 Id. ¶ 2 n.3, at 21. 113 Id. ¶ 30 n.5, at 15 (majority opinion). 114 Id. ¶ 30 n.5, at 16 (quoting Wilson, 1913 OK 486, ¶ 13, 134 P. at 386). 115 Appellants' Pet. for Writ of Cert. 2, 6, 10. 116 Id. at 2, 6--7, 9--10. 117 Id. at 2, 5--6, 10. 118 Id. at 2--5, 10. 119 For his part, Judge Blackwell's dissent states that, "[b]ecause the plaintiffs are ultimately seeking their share of proceeds from production, the applicable statute of limitations is five years from the date the claims accrued" and cites only 52 O.S.2011, § 570.14(D). COCA's Op. ¶ 2 n.3, at 21 n.3 (Blackwell, J., dissenting). He did not cite the Arnold case on this point, probably because Arnold did not discuss or cite the PRSA at all. Thus, it appears that Trustees misrepresent the basis for Judge Blackwell's conclusion that the 5-year statute of limitation, if any, should apply. 120 See generally supra notes 35--41 and accompanying text for further discussion of these prelitigation letters. KUEHN, J., with whom ROWE, V.C.J., joins, CONCURRING IN RESULT: ¶1 The Court of Civil Appeals (COCA) held that summary judgment was proper, mooting Petitioners' other claims. The Majority ultimately reaches the same conclusion. I would dismiss certiorari as improvidently granted, approve the COCA opinion for publication, and accord it precedential value because it succinctly shows how the outcome here is determined by established law.1 20 O.S. § 30.5; Supreme Court Rule 1.200(d). FOOTNOTES 1 COCA Op. at ¶31 (citing Scott v. Peters, 2016 OK 108, 388 P.3d 699 and Calvert v. Swinford, 2016 OK 100, 382 P.3d 1028). As the COCA explained, while Arnold v. Cabot Oil & Gas Corp., 2021 OK 4, 485 P.3d 817 involved markedly different facts, it is nevertheless premised on the idea that quiet-title actions are subject to 12 O.S. § 93(4). Id. at ¶¶9, 13, 15 (citing Scott and Calvert). Applying established precedent, the COCA (at ¶30 n. 5) also rejected the notion that equitable claims should be actionable in perpetuity. I find the Majority's opinion burdensome on unnecessary details and heavy-handed in its critique of Petitioners' counsel.

3a93f174-5532-4676-b6a4-6bf97f579b68

Whittington v. Durant H.M.A.

oklahoma

Oklahoma Supreme Court

WHITTINGTON v. DURANT H.M.A.2022 OK 97Case Number: 116794Decided: 12/06/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. KINION WHITTINGTON, D.O., Plaintiff/Petitioner, v. DURANT H.M.A., LLC, Defendant/Respondent. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 3; ON APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY Honorable Mark R. Campbell, District Judge ¶0 The issue on appeal is whether the trial court abused its discretion by relying on an attorney's controverted affidavit to prove bad faith litigation conduct and whether the trial court had before it sufficient evidence to support the trial court's award of attorney fees based on maintaining or defending an action in bad faith. The trial court concluded that Durant's litigation conduct was "done in bad faith, was oppressive, vexatious and willful," and sanctioned Durant to pay Plaintiff's attorney fees and costs. The COCA reversed the trial court order in its entirety. We previously granted the petition for certiorari, and now vacate the COCA decision and reverse the trial court's granting of attorney fees and costs. THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE DISTRICT COURT'S JUDGMENT ON ATTORNEY FEES IS REVERSED. Steven M. Harris and S. Max Harris, Doyle Harris Davis & Haughey, Tulsa, Oklahoma, for Plaintiff/Appellee. Ryan T. Scharnell, Conner & Winters, LLP, Tulsa, Oklahoma, for Defendant/Appellant. GURICH, J. ¶1 This appeal requires us to determine whether the trial court abused its discretion in granting a fee award by relying on an attorney's controverted affidavit to prove bad faith litigation conduct. We conclude that an attorney's affidavit is sufficiently credible without supplemental testimony. However, the alleged egregious litigation conduct did not rise to the level necessary to prove bad faith or to award attorney fees and costs as a sanction for that conduct. The trial court's determination that Durant conducted itself in bad faith was clearly erroneous. Accordingly, the Court vacates the decision of the COCA and reverses the decision of the trial court. Facts and Procedural History ¶2 Durant H.M.A., LLC ("Durant"), an Oklahoma limited liability company, is a general acute care medical center in Durant, Oklahoma. Durant is owned by local physicians, including Dr. Kinion Whittington (Plaintiff) who holds 470 ownership units, and Community Health Systems Professional Services Corporation ("CHSPSC"), a Delaware limited liability company. ¶3 Prior to filing suit, Plaintiff's counsel contacted the attorney for Durant and requested to view and copy several business records maintained by Durant as authorized by 18 O.S. 2011, § 2021(B).1 Specifically, Plaintiff requested Durant's unaudited financial records for years 2013-2015 and a copy of the Fair Market Value Analysis of Durant HMA, LLC d/b/a Medical Center of Southeastern Oklahoma, dated September 11, 2015 (the "Valuation"). Due to Durant's continued refusal to provide the requested records, Plaintiff filed suit in the trial court on June 8, 2016. Plaintiff sought an injunction ordering Durant to produce the Valuation, and also sought damages and a declaratory judgment against Durant based on the violation of its duties under section 2021(B). ¶4 On June 16, 2016, after litigation had been commenced but prior to service of the suit upon Durant, Durant furnished the unaudited financial records for years 2013-2015, but continued to refuse to provide the Valuation. Durant maintained that the Valuation was obtained by and at the expense of CHSPSC and it was therefore the private property of CHSPSC, not Durant. Accordingly, Durant argued that it had no authority or duty to provide the report to Plaintiff pursuant to 18 O.S. 2011, § 2021. Eventually, however, Durant procured consent from the contracted evaluator and CHSPSC to share the Valuation with Plaintiff, and forwarded a copy of the Valuation to Plaintiff on August 30, 2016.2 ¶5 On October 11, 2016, Durant moved the trial court to dismiss Plaintiff's lawsuit as moot because Durant produced the Valuation. Plaintiff objected to the motion to dismiss, arguing that production of the Valuation was an admission of Durant's violation of section 2021(B) and that the case was not moot. Plaintiff combined this objection with a motion for partial summary judgment. On December 29, 2016, the trial court denied Durant's motion to dismiss and granted partial summary judgment in Plaintiff's favor. ¶6 On December 27, 2016, Plaintiff requested additional documents including a request to inspect and copy all contracts and related documents between Durant and Durant Anesthesia Associates, LLC ("DAA"). Counsel for both parties met to discuss and clarify the request. Unable to resolve the issue, Plaintiff amended his petition on March 28, 2017, to include allegations concerning the DAA contract. Plaintiff filed a second motion for summary judgment on May 5, 2017. Durant filed a combined response and counter-motion for partial summary judgment. The motions were argued to the court in June 2017, and on July 3, 2017, the trial court entered an order sustaining Plaintiff's second motion for summary judgment and denying Durant's counter-motion for partial summary judgment. ¶7 After the trial court's granting of summary judgment in his favor, Plaintiff filed several applications for fees and costs relying on the inherent equitable authority of the trial court to award fees and costs for litigation misconduct addressed in City National Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4.3 Plaintiff further asked the trial court to enhance an award of fees by applying factors found in Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. In the alternative, Plaintiff asked for the statutory maximum damages of $10,000.00 allowed by 23 O.S. 2011, § 103.4 Plaintiff attached itemized fee records and other supporting documentation to his application for attorney fees and costs, which included declarations from Plaintiff's counsel, Steven M. Harris and S. Max Harris, made pursuant to 12 O.S. 2002, § 426. The second application for attorney fees and costs included further itemized fee records and again contained the affidavits of Plaintiff's counsel Steven M. Harris and S. Max Harris. In the second iteration of S. Max Harris's affidavit, however, Harris included an additional paragraph which asserted that during a conversation with Durant's counsel, Ryan Scharnell, Scharnell disclosed a bad-faith reason for seeking an immediate ruling on Durant's motion to dismiss.5 Durant disputed the allegations and contended its actions were made in good faith. The parties agreed to bifurcate entitlement to fees and costs from the actual amount incurred. ¶8 The hearing on the entitlement portion of Plaintiff's motion was heard on October 3, 2017, and the trial court issued its order granting Plaintiff's motion for attorney fees and costs on October 10, 2017. The subsequent hearing on the damages portion of Plaintiff's motion for attorney fees and costs took place on January 16, 2018. At the hearing, the trial court heard expert witness testimony presented by Plaintiff and Durant as to the reasonableness of the attorney fees. On January 26, 2018, the trial court concluded: Defendant's [Durant's] conduct in their opposition to the Plaintiff's claims was done in bad faith, was oppressive, vexatious and willful. More specifically, Defendant's conduct caused Plaintiff to needlessly expend money on legal fees and costs to obtain information that he was legally entitled to have. Based on the foregoing, Plaintiff is entitled to his attorneys' fees and costs. Accordingly, the court hereby awards Plaintiff $51,582.50 in attorneys' fees and $2,865.41 in costs. ¶9 Durant timely appealed from the trial court's decision awarding fees and costs and the case was assigned to the COCA.6 The COCA reversed the trial court's award of fees and costs, holding that "[a]lthough the court ultimately found that [Plaintiff] was entitled to the documents he sought, that conclusion was not clear at the outset. Both parties acknowledge there is little authority interpreting section 2021(B), and the language of the statute opens the possibility for disagreement regarding the reviewability of company documents." The COCA also held that "[Plaintiff's] counsel's self-serving affidavit, without more, is not enough to support a finding of bad faith or vexatious, wanton, or oppressive litigation misconduct." Relying on Poafpybitty v. Skelly Oil Co., 1973 OK 110, ¶ 17, 517 P.2d 432, 438, the COCA held that the trial judge erred by not requiring supplemental testimony to support S. Max Harris's self-interested affidavit--an issue the COCA raised sua sponte. Finally, because Durant complied with most of Plaintiff's requests, the COCA did not consider its litigation strategy oppressive.7 Plaintiff petitioned this Court for a writ of certiorari, arguing that the COCA misapplied Poafpybitty and contradicted Oklahoma's Rules of Evidence. We granted Plaintiff's Petition for Certiorari. Standard of Review ¶10 Evaluation of the correctness of the trial court's imposition of attorney fees and costs as a sanction requires an abuse-of-discretion review. Hammonds v. Osteopathic Hosp. Founders Ass'n, 1996 OK 100, ¶ 6, 934 P.2d 319, 322. Abuse of discretion occurs where "discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence." Patel v. OMH Med. Ctr. Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. Analysis USE OF THE ATTORNEY'S AFFIDAVIT WAS NOT ERROR ¶11 Title 12, section 421 of the Oklahoma Statutes approves three acceptable modes for taking witness testimony: by affidavit; by deposition; and by oral examination. Undoubtedly, an affidavit is a statutorily approved mode of taking testimony. State ex rel. Okla. Bar Ass'n v. Dobbs, 2004 OK 46, ¶ 38 & n.44, 94 P.3d 31, 51 & n.44. In this case, to support an award of Plaintiff's attorney fees and costs, Plaintiff's counsel, Harris, provided an affidavit stating that Durant's counsel, Scharnell, disclosed that Durant was acting in bad faith. Harris asserted that during a conversation with Scharnell, Scharnell revealed that Durant wanted an immediate ruling on its motion to dismiss so that if Plaintiff made subsequent requests for corporate documents pursuant to 18 O.S. 2011, § 2021(B), Plaintiff would be forced to file additional lawsuits.8 Durant refuted this allegation, rebutting Harris's affidavit with an offer of proof from Scharnell which disputed the contents of the alleged conversation with Harris.9 Durant also produced emails which refuted Harris's account. These issues were heard by the trial court on October 3, 2017 and, notably, Durant made no objection to the use of Harris's affidavit to support Plaintiff's application for attorney fees and costs. 10 ¶12 Due to the COCA's reliance, in part, on Poafpybitty for reversing the decision of the trial court, a closer look is required. In Poafpybitty, a summary judgment proceeding, this Court discounted an affidavit provided by the Vice-President of the defendant company in support of its position. Poafpybitty was a complex case wherein the trial court sustained a summary judgment motion in favor of Skelly Oil Company and denied recovery to plaintiffs for oil royalties for vented casinghead gas. The judgment for Skelly was affirmed on appeal. In considering the sufficiency of the evidence submitted in support of Skelly's motion, the Court both accepted and rejected parts of the affidavit of L.L. Byars, Skelly Oil Company's Vice-President. In reliance on the case of Sartor v. Arkansas National Gas Corp.,11 which dealt with Rule 56 of the Federal Rules of Civil Procedure, the Court in Poafpybitty observed: in considering the affidavit of an interested witness, the fact of his interest in the result of a suit is sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact. We add, however, that such strictness of consideration does not apply to a statement in an affidavit that is uncontroverted and has indication of support elsewhere in the record. We thus preserve the salient reason for the use of affidavits in summary judgment matters, i.e., placing before the court important matter that may aid in avoidance of a useless trial. 1973 OK 110, ¶ 17, 517 P.2d at 438. The statement in Poafpybitty has been interpreted as recently as 2012 to mean that an affiant's interest in the outcome of a suit is enough to require the testing of his or her credibility before the trier of fact.12 We also note that since Poafpybitty was decided, the use of affidavits in summary judgment proceedings was expanded and explained in 12 O.S. 2011, § 2056.13 ¶13 However, in this case we are not faced with the use of an affidavit in a summary judgment, but rather in a proceeding where the court is the trier of fact. In attorney-fee proceedings for sanctions based upon oppressive behavior, the trial judge is factfinder. Walker v. Ferguson, 2004 OK 81, ¶¶ 14-15, 102 P.3d 144, 147. As factfinder, the trial judge determines fact questions and weighs credibility of witnesses and evidence. The affiant in this case is an attorney bound by the Oklahoma Rules of Professional Conduct, which require a duty of candor toward the tribunal.14 While there may be penalties for deceitful affiants, the penalties for attorneys are higher. If an attorney submits an untruthful affidavit, not only could they lose their case, they could lose their license to practice law.15 Further, attorney representations to the courts are governed by the Oklahoma Pleading Code, which likens such representations to reasonable certifications of credibility.16 Because Plaintiff presented Harris's testimony in an acceptable mode--by affidavit--it was sufficient for the factfinder's consideration without supplemental testimony by oral examination. The trial judge heard the relevant issues as the trier of fact during oral argument on Plaintiff's application for attorney fees and costs and, therefore, the trial court committed no error in relying on the affidavit of plaintiff's counsel. THE TRIAL COURT'S DETERMINATION THAT DURANT ACTED IN BAD FAITH WAS AN ABUSE OF DISCRETION. ¶14 In Oklahoma, the right of a litigant to recover attorney fees is governed by the American Rule. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 13, 829 P.2d 15, 22. This Rule is firmly established in Oklahoma and provides that courts are without authority to award attorney fees in the absence of a specific statute or a contractual provision allowing the recovery of such fees, with certain exceptions. Id. This Court has ruled that exceptions to the American Rule are narrowly defined. Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2000 OK 55, 11 P.3d 162. ¶15 In this case, the trial court based the fee award on its inherent authority to award fees under the exception to the American Rule articulated in City National Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4. In Owens, we approved an award of attorney fees against a party that "has acted in bad faith, vexatiously, wantonly, or for oppressive reason." Id. ¶¶ 12, 17, 565 P.2d at 7-9. In the case of State ex. rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 26, 61 P.3d 234, this Court stated: City National Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4, recognized the inherent equitable authority of a trial court to award attorney fees against a party for bad faith litigation misconduct - conduct that is vexatious, wanton or engaged in for oppressive reasons. The authority springs from a court's power to manage its own affairs to achieve the orderly and timely disposition of cases and is a necessary implicit element in the existence of a judicial system. See Winters By and Through Winters v. City of Oklahoma City, 1987 OK 63, 740 P.2d 724, 726. Owens' progeny makes plain, however, the inherent authority exception to the American Rule recognized in Owens (1) is a narrow one; (2) should be applied with a degree of caution and restraint; and (3) was not intended to grant trial courts some broad, all-encompassing equitable authority to award attorney fees. Smith v. State ex rel. Dept. of Human Services, 1990 OK 19, 788 P.2d 959, 961-962; see also Wallace v. Halliburton Co., 1993 OK 24, 850 P.2d 1056, 1060-1061. In plain words, the inherent power was not meant to be a mechanism to sanction or punish parties or their attorneys for raising novel theories or espousing unpopular causes that are neither baseless nor frivolous. For attorney fees to be awarded under a court's inherent authority "overriding considerations" must indicate the need for such a recovery. Owens, 565 P.2d at 8-9. More specifically at issue here, for a defense to constitute bad faith litigation misconduct, the defense "must be objectively unreasonable." Pope v. Fulton, 2013 OK CIV APP 84, ¶ 16, 310 P.3d 1110, 1114 (citing Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2004 OK 25, ¶ 15, 94 P.3d 25, 29). ¶16 The trial court was within its discretion to accept Harris's controverted affidavit to support Plaintiff's allegations of bad faith conduct on the part of Durant. However, for Durant's conduct to constitute bad faith, its actions must have been frivolous, vexatious, wanton or engaged in for oppressive reasons and objectively unreasonable.17 Durant withheld two documents that gave rise to the case at bar: the Valuation and the DAA contract. Yet throughout litigation, Durant asserted cogent reasoning for its withholding of these specific documents. As to the Valuation, Durant argued that it was the property of CHSPSC and not Durant; therefore, it was not obtainable pursuant to 18 O.S. 2011, § 2021(B). CHSPSC is the managing stockholder of Durant; and CHSPSC, not Durant, obtained and paid for the Valuation for planning purposes regarding a put right offered to Durant's members.18 Durant maintained that as it was not a party to the contract, it had no right, duty, or authority to disseminate the resulting Valuation. To further support this assertion, in order to release the Valuation, which it eventually did, Durant had to obtain consent from both CHSPSC and the contracted evaluator. ¶17 As to the DAA contract, Durant averred that while there is no Oklahoma case law specifically on point, it relied on theories gleaned from Delaware, which state that Plaintiff must provide a legitimate, specific rationale for demanding corporate documents in order to investigate wrongdoing.19 Durant was concerned that Plaintiff's request for the DAA contract had little to do with a purpose reasonably related to his interest in Durant, as required by 18 O.S. 2011, § 2021(B), and more to do with Plaintiff's ongoing feud with DAA.20 To ensure that Plaintiff was requesting the DAA contract for a purpose reasonably related to his interest in Durant, Durant requested that Plaintiff provide a basis for the request. In response, Plaintiff's counsel sent an email stating that the basis for Plaintiff's request was due to concerns surrounding the DAA contract and potential violations of Stark Law and/or the Anti-Kickback statute. Yet rather than providing specific allegations regarding his request, Plaintiff merely attached an article that touts the dangers of Stark Law and made vague assertions that he was in possession of concerning information.21 Durant contended that because Plaintiff failed to give specific rationale for requesting the DAA contract, it was not required to produce it. ¶18 When determining whether a defense or conduct rises to the level of bad faith, it is important to note that novel or unpopular theories do not inevitably equate to bad faith if they have a reasonable basis in law and fact, even if they are unlikely to succeed.22 As both sides agree, there is little law interpreting 18 O.S. 2011, § 2021(B). In its defense, Durant made cogent arguments regarding its withholding of only the documents at issue while producing several others upon Plaintiff's request. As Durant asserted arguments based in law and fact for its withholding of the Valuation and DAA contract, and this defense is objectively reasonable, a finding of bad faith is precluded. ¶19 Further, Plaintiff's reliance only on the facts giving rise to this case and an affidavit from Harris is not sufficient to support the trial court's finding of bad faith and the resulting sanction. Despite the fact that Plaintiff continually characterizes Harris's affidavit as "uncontroverted," the record tells a different tale. During oral argument, Scharnell succinctly rebutted Harris's affidavit, stating: "I do dispute that that was the conversation I had with him. . . ."23 Scharnell also produced emails between counsel which indicated that Scharnell--contrary to Plaintiff's assertions that Durant refused a continuance--was the one to initiate talks of a continuance.24 Though the parties could not agree to a date for the continuance, the motion was continued by the court, without opposition from Durant when Harris fell ill.25 The controverted facts do not rise to the level necessary to support the trial court's sanction of attorney fees and costs for bad faith. Conclusion ¶20 We recognize that the trial court was very familiar with this case which began in June of 2016, and eventually resulted in judgment entered in January of 2018. The trial court was in the best position to evaluate the demeanor and credibility of the parties and counsel over the course of one-and-a-half years. However, based upon the totality of the record, we find that the trial court had insufficient evidence to support an award of attorney fees as a sanction for bad faith litigation conduct and abused its discretion in finding that Durant's actions amounted to bad faith. For this reason, we vacate the COCA's opinion, reverse the trial court, and vacate the award of fees and costs. THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE DISTRICT COURT'S JUDGMENT ON ATTORNEY FEES IS REVERSED. Darby, C.J., Kauger, Winchester, Edmondson, Gurich, and Rowe, JJ., concur. Kuehn, J. (by separate writing), concurs in result. Kane, V.C.J. and Combs, J., dissent. FOOTNOTES 1 18 O.S. 2011, § 2021(B): B. A member, for any purpose reasonably related to the member's interest, may: 1. At the member's own expense, inspect and copy any limited liability company record upon reasonable request during ordinary business hours; 2. Obtain from time to time upon reasonable demand: a. true and complete information regarding the state of the business and financial condition of the limited liability company, b. promptly after becoming available, a copy of the limited liability company's state and local income tax returns for each year, and c. other information regarding the affairs of the limited liability company as is just and reasonable; and 3. Have a formal accounting of the limited liability company's affairs whenever circumstances render it just and reasonable. 2 At this time, the Valuation was subject to an agreed protective order which was later lifted pursuant to Durant's letter dated September 19, 2016. 3 After the trial court's granting of Plaintiff's first motion for summary judgment, Plaintiff filed his first application for fees and costs on January 27, 2017, asking to recover $26,902.75 in attorney fees and $1,249.02 in costs. After the trial court's granting of Plaintiff's second motion for summary judgment, Plaintiff filed his renewed application for fees and costs on July 31, 2017, asking to recover $43,667.50 in attorney fees and $2,325.88 in costs. Plaintiff filed a supplement to his renewed application on November 28, 2017, asking for a total of $51,582.50 in attorney fees and $2,865.41 in costs. 4 A determination on the applicability of 23 O.S. 2011, § 103 has never been issued; however, we do not address this argument as it is not before us on appeal. 5 In the affidavit, Plaintiff's counsel, S. Max Harris, made the following statement at issue: On October 25, 2016, I spoke to Ryan Scharnell, counsel for Defendant. Mr. Scharnell expressed his client's desire to receive an immediate ruling on its Motion to Dismiss. Mr. Scharnell stated that the reason for this, was that if this case was over and the Defendant decided not to comply with a subsequent request made by [Plaintiff] under 18 O.S. § 2021(B), that it would be Dr. Whittington's burden to file another lawsuit". R. 419, Vol. III Declaration of S. Max Harris, ¶ 2. 6 Pursuant to Okla. Sup. Ct. R. 1.21, "[a]n appeal from the district court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty days from the date the judgment, decree, or appealable order . . . was filed with the clerk of the district court." Okla. Sup. Ct. R. 1.3 states: "When the last day of the period so computed falls on a day when the court clerk's office at which . . . the instrument is to be filed is not open during the full business day (until 4:00 p.m.), the period shall stand extended to include the next ensuing business day." Here, Durant's thirty-day time to appeal ran on February 25, 2018, however, as this was a Sunday and the Clerk's office was not open, the time to timely appeal was extended to February 26, 2018. 7 The COCA briefly addressed Durant's argument that the conduct complained of gave rise to the litigation and could therefore not constitute the foundation of a bad faith claim; but because this issue was not argued on certiorari, we decline to address it here. 8 Mot. Hr'g Tr. 9, Oct. 3, 1017 [sic]. 9 Id. at 9--10. 10 Id. exs. A--B. 11 321 U.S. 620, 64 S. Ct. 724, 88 L. Ed. 967 12 Harmon v. Cradduck, 2012 OK 80, ¶ 17, 286 P.3d 643, 650. 13 12 O.S. § 2056(E) provides: AFFIDAVITS AND FURTHER TESTIMONY. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. 14 See ORPC Rules 3.3, 8.4(c), 5 O.S. 2011, ch. 1, app. 3-A; State ex rel. Okla. Bar Ass'n v. Johnston, 1993 OK 91, ¶¶ 16, 18, 863 P.2d 1136, 1143 (analyzing the attorney-respondent's statement under Rule 8.4(c), Misrepresentation, and Rule 3.3, False Statement). 15 See RGDP 1.3, 1.7, 5 O.S. 2011, ch. 1, app. 1-A. 16 See Okla. Pleading Code, 12 O.S. Supp. 2020, § 2011(B), which provides: REPRESENTATIONS TO COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 1. It is not being presented for any improper or frivolous purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; 2. The claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; 3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and 4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. 17 Pope v. Fulton, 2013 OK CIV APP 84, ¶ 16, 310 P.3d 1110, 1114 (citing Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2004 OK 25, ¶ 15, 94 P.3d 25, 29.). 18 A put right allows an investor "to compel the entity and/or the other owners to purchase their interest upon the occurrence of certain events." Alan S. Gutterman, Business Transaction Solutions § 36:48, Westlaw (Nov. 2021 Update). According to a letter addressed to Plaintiff's counsel by a Partner of Durant's law firm, in 2015--less than one year before Plaintiff requested access to the valuation--Durant allowed its members to inspect the valuation before occurrence of the put right "opportunity for repurchase of members' units in the LLC." Inspection allowed members to "review the manner in which the offered purchase price was determined," so they could dispute the offered price in accordance with the Operating Agreement. 19 See Bizzari v. Suburban Waste Servs., Inc., No. CV 10709-JL, 2016 WL 4540292 (Del. Ch. Aug. 30, 2016). 20 DAA sent Plaintiff and Durant a letter on December 1, 2016, which stated that DAA would no longer be accepting consults for induced labor epidurals for Plaintiff's or another doctor's patients after January 1, 2016 [sic]. Only after this letter was received did Plaintiff request all contracts/agreements between Durant and DAA. 21 Pls. Reply to Defs. Objection to Pls. Application/Mot. for Attorneys' Fees and Costs, ex. B. 22 See State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 26, 61 P.3d 234, 247; see also Pope v. Fulton, 2013 OK CIV APP 84, ¶ 16, 310 P.3d 1110, 1114. 23 Mot. Hr'g Tr. 10, Oct. 3, 1017 [sic]. 24 Id. exs. A--B. 25 Id. at 9. KUEHN, J., CONCURRING IN RESULT: ¶1 I agree that the trial court erred in awarding Petitioner attorney fees on a finding that Respondents acted in bad faith. As the Majority says, exceptions to the American Rule awarding attorney fees are very narrow. It is and should be difficult to show that a party acted vexatiously, wantonly, or for an oppressive reason. Barnes v. Okla. Farm Bureau Mu. Ins. Co., 2004 OK 25, ¶ 15, 94 P.3d 25, 29; State ex rel. Tal v. city of Oklahoma City, 2002 OK 97, ¶ 26, 61 P.3d 234, 247-48. Here, at most, the record shows a controverted allegation that Respondents' actions in litigation were intended to increase Petitioner's costs and interfere with his ability to pursue his claims. I believe no rational factfinder could have found this allegation, if true, rose to the level of vexatiousness required to justify an award of attorney fees. ¶2 However, I do not join the Majority's discussion of affidavits, although I too would find the affidavit in this case was properly admitted. By statute, affidavits are an acceptable form of testimony. 12 O.S. §§ 421, 422, 431, 432, and 2056 (setting forth requirements for affidavits offered in support of or opposition to a motion for summary judgment). This is true no matter what the procedural posture of the case is; a properly executed affidavit is admissible as an accepted form of testimony whether it is offered in a pretrial motion, a motion for summary judgment, during the trial, or in post-trial proceedings. None of these statutes restrict admissibility of affidavits based on an affiant's circumstances. However, we have held that, where an affiant is an interested party and the relevant statement is controverted, the credibility of the affiant's testimony should be submitted to the trier of fact. Poafpybitty v. Skelly Oil Co., 1973 OK 119, ¶ 17, 517 P.2d 432, 438. This isn't necessary where a statement is uncontroverted and has some support in the record. Id. An interested party is one who is a party to the lawsuit or has an interest in its outcome. Id.; Deutsche Bank Nat. Trust Co. v. Roesler, 2015 OK CIV APP 36, ¶ 22, 348 P.3d 707, 713-14. Neither Poafpybitty nor subsequent cases require corroborating evidence to be presented before the factfinder makes a determination of credibility. Of course, without such evidence it is likely that the factfinder will decide the statement is not credible. And such a determination goes to the weight to be given an affidavit, not its admissibility. An affidavit by an interested party, on a controverted issue, may be admitted for what it is worth, and a factfinder may decide it isn't worth much. ¶3 I emphasize this settled law because COCA's opinion may have blurred the issue as one of admissibility rather than weight. COCA seems to imply that a factfinder cannot make a credibility determination where no corroborating evidence supports a controverted or uncontroverted statement in the affidavit of an interested party. ¶4 Did the trial court properly consider the attorney's affidavit here? The affidavit was properly submitted under Section 421. The attorney affiant was an interested party: the affidavit was submitted to support his request that he be granted attorney fees and costs. The affidavit was controverted: affiant claimed opposing counsel made a statement, and opposing counsel denied it. So the trial court could properly consider the affidavit to determine its credibility. And if the trial court found the statement credible, it could rely on the affidavit in reaching its decision. As I state above, I believe the trial court abused its discretion in determining the merits of the attorney fee request. However, the court certainly could consider the affidavit in making that decision. ¶5 I write separately because the Majority does not address the potential ambiguity in the COCA opinion. The majority discusses Section 421 and Poafpybitty, but does not apply either law to this case. Instead, it veers into a discussion of attorney duties and responsibilities, and concludes that an affidavit by an attorney needs no corroboration. I don't disagree with that conclusion, but it does not answer the questions presented by COCA's opinion: when are affidavits admissible, and must an affidavit from an interested party be corroborated before it may be admitted and considered.

395730b0-161c-4ebe-8061-d57e34578c89

Farris v. Masquelier

oklahoma

Oklahoma Supreme Court

FARRIS v. MASQUELIER2022 OK 91Case Number: 116555Decided: 11/15/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARK FARRIS and JOLANA FARRIS, Husband and Wife, Plaintiffs/Appellants, v. PRESTON W. MASQUELIER and CANDY MASQUELIER, Husband and Wife, as Joint Tenants, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Plaintiffs/Appellants filed suit in this water rights case claiming that Defendants/Appellees interfered with their rights by damming a stream that flows down to Plaintiffs/Appellants' property. After a jury verdict in favor of Defendants/Appellees, Plaintiffs/Appellants appealed, and the Court of Civil Appeals reversed finding error in the jury instructions and remanded the cause. This Court granted certiorari. Applying the proper fundamental error standard of review, we vacate the opinion of the Court of Civil Appeals and affirm the trial court's denial of the motion for new trial. We reverse the trial court's ruling on the denial of attorney fees to Defendants/Appellees and remand the matter for a determination of reasonable fees. CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE TRIAL COURT'S JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Jason B. Aamodt and Matthew D. Alison, Indian and Environmental Law Group, PLLC, Tulsa, Oklahoma; and Trae Gray, Coalgate, Oklahoma, for Mark and JoLana Farris. Jon E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma; Kaylee Davis-Maddy and Michael J. English, Doerner, Saunders, Daniel & Anderson, L.L.P., Oklahoma City, Oklahoma; and Mark Walraven and Anthony Moore, Graft & Walraven, PLLC, Clinton, Oklahoma, for Preston and Candy Masquelier. WINCHESTER, J. ¶1 At issue in this case is whether the Court of Civil Appeals, Division III, (COCA) correctly reversed the trial court's denial of a new trial after finding error in the jury instructions. We find COCA's reversal utilized an improper standard of review. Upon employing the correct standard, the trial court's ruling must be affirmed. BACKGROUND AND PROCEDURAL HISTORY ¶2 Plaintiffs/Appellants, Mark and Jolana Farris (the Farrises), own property in Custer County, Oklahoma, downstream from property owned by Defendants/Appellees, Preston and Candy Masquelier (the Masqueliers). Both properties abut an unnamed tributary of the South Canadian River, known to the parties as Crow Springs Creek (the "Creek"). The Creek begins from an underground source on the Masqueliers' property and flows through other properties before reaching the Farrises and finally running into the Canadian River. ¶3 In January 2014, the Masqueliers constructed a dam on the Creek for the purposes of impounding some of the water from the Creek into a pond they also had constructed on their property. When the Farrises discovered the construction of the dam, they filed an application for an appropriation permit from the Oklahoma Water Resources Board ("OWRB") seeking to appropriate a portion of the Creek to irrigate crops and trees.1 Two other downstream neighbors of the Masqueliers, non-parties to the instant action, filed applications for appropriative permits of their own. Thereafter, the Masqueliers also filed an application for a permit from the OWRB seeking to appropriate some of the Creek water for irrigation as well as to sell to oil and gas companies for their drilling needs.2 ¶4 The Farrises protested the Masqueliers' application, citing interference by the Masqueliers with the Farrises' use of the stream. The OWRB conducted a multi-day hearing within which the nine-member board received evidence and heard expert testimony from the parties. The OWRB made numerous findings of fact and conclusions of law relating to each application and ultimately issued permits, with conditions, to each applicant. The permits issued to the property owners downstream from the Masqueliers each received permits superior to the Masqueliers' permit by virtue of being first to file. ¶5 JoLana Farris's permit allowed for an appropriation of 68.75 acre-feet of stream water per year to irrigate fifty-five acres of trees and crops, as requested. The OWRB noted in their findings that the Farrises would need to implement a plan to impound or store water as a condition of their permit.3 Likewise, in awarding the Masqueliers' permit, the OWRB imposed conditions upon the Masqueliers to agree to continually release at least 12.2 gallons per minute (gpm), an amount specifically requested by the Farrises at the hearing, to the downstream property owners using a siphon pump.4 The OWRB further conditioned the permit on the Masqueliers' agreement to not interfere with then-existing domestic and appropriative uses of the downstream owners. The decision of the OWRB as to each of the permits was not appealed by either party. ¶6 In April 2016, the Farrises filed suit against the Masqueliers in district court in Custer County claiming that, as a result of the dam's construction, they no longer received adequate water flow to meet their lawful riparian and appropriative rights to the Creek waters. The Farrises further claimed they incurred damages for harm to their real property and a resulting inability to farm their land. The Farrises sued the Masqueliers for nuisance, negligence, negligence per se, unjust enrichment and punitive damages. They additionally sought an injunction to have the dam removed from the stream. ¶7 After a five-day jury trial, the jury returned a verdict for the Masqueliers on all claims and the trial court subsequently denied the request for an injunction. The trial court awarded costs to the Masqueliers but denied their request for attorney fees. The Farrises moved for a new trial and, after this request was denied, they appealed. The Masqueliers counter-appealed the denial of their attorney fees. On appeal, COCA found multiple errors in the jury instructions, reversed the trial court's decision, and remanded the case for further proceedings. The Masqueliers petitioned this Court for certiorari which we previously granted. DISCUSSION ¶8 The Farrises allege that errors in the jury instructions limited their ability to present their case. Specifically, they assert the trial court provided incorrect, confusing, and prejudicial instructions concerning their negligence per se, interference and natural flow claims. They further argue that the trial court failed to properly frame the role of the OWRB for the jury causing the jury to place too much importance on the OWRB's findings. They also took issue with the trial court's rulings on various motions in limine as well as a host of other miscellaneous issues. ¶9 COCA agreed with the Farrises that the trial court failed to properly instruct the jury on the issues raised by the Farrises and overturned the trial court's denial of the motion for new trial. First, COCA found that the trial court failed to give a proper negligence per se jury instruction. The court found Instruction No. 19 failed to correctly state the law because it did not include the title "Negligence Per Se" and it also failed to apprise the jury of the Farrises' domestic riparian water rights claims. The court next determined that the trial court placed too much emphasis on the importance of the OWRB in the jury instructions and failed to properly frame the OWRB's role to the detriment of the Farrises' claims. Additionally, COCA held that the district court's rulings in limine were improper regarding the OWRB's requirement for the Farrises to provide their own water storage system before claiming interference with their water rights from the Masqueliers' dam. ¶10 The Masqueliers argue that COCA overturned the jury verdict based on errors in the jury instructions for which the Farrises failed to properly object during trial and that the appellate court employed an erroneous standard of review. They further argue that COCA relied on jury instructions the Farrises attached to their brief in chief on appeal but were never filed of record in the underlying case. Additionally, the Masqueliers point out that COCA issued its opinion before their Answer Brief was filed despite an extension of the due date caused by the pandemic. Accordingly, the Masqueliers assert that the COCA opinion failed to address their waiver arguments regarding the timeliness of the Farrises' objections to the jury instructions. I. Allegations of Error in the Jury Instructions ¶11 On appeal, the Farrises allege several errors in the instructions given to the jury. Prior to trial, both parties submitted proposed jury instructions to the trial court which were filed of record. At the close of all the evidence, the trial court rendered a final set of jury instructions and discussed these with counsel for both parties at a jury instruction conference before presenting the instructions to the jury. At this meeting, counsel for the Farrises made a few, limited objections on the record. ¶12 Specifically, the Farrises objected to a portion of Instruction No. 9 in which the Defendants' claims were set forth. The alleged offensive provisions were noted within the instruction to be the Defendants' (Masqueliers') contentions and not statements of law.5 The jury was free to accept or reject these contentions as warranted by the evidence presented at trial, just as they were free to accept or reject the claims set forth by the Farrises within the same Instruction. The Farrises next objected to Instruction No. 10 as it relates to Plaintiffs' (Farrises') allegations.6 They maintained that it didn't accurately reflect all of their allegations. And finally, as to Instruction No. 19, counsel for the Farrises stated that "the instruction should be submitted as we had provided it, with the specific references to the statutes that have been involved here -- that are being followed here." Trial Transcript, Vol. 8, pp 1658-1659. No further discussion or objections were made by the Farrises on the record with respect to the jury instructions. ¶13 Preservation of an objection is key to a party's claim of error in the jury instructions given at trial. Statutory law provides the framework for making a proper objection: A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating into the record in open court, out of the hearing of the jury, after the reading of all instructions, the number of the particular instruction that was requested, refused and is excepted to, or the number of the particular instruction given by the court that is excepted to. Provided, further, that the court shall furnish copies of the instructions to the plaintiff and defendant prior to the time and instructions are given by the court. 12 O.S. 2011, § 578. Where a party makes no objection to a jury instruction prior to the giving of that instruction to the jury yet raises the issue on appeal, the authority of the appellate court to review the alleged error is "severely limited." Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶ 5, 961 P.2d 801, 802. Under such a review, the appellate court can only review for prejudicial error, e.g., an erroneous statement of fundamental law, appearing upon the face of the instructions. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶ 9, 961 P.2d 801, 803. A case is reviewable for fundamental error even when no exception has been taken. ¶14 Fundamental error occurs when the trial court fails to accurately state the law and "compromises the integrity of the proceeding to such a degree that the error has a substantial effect on the rights of one or more of the parties." Sullivan, at ¶ 7, 784 P.2d at 802. While it is the trial court's duty to accurately state the law of the case, it is not the court's duty to frame the issues at trial. That responsibility lies with the parties to ensure that the jury instructions "accurately reflect the issues tendered by the evidence adduced at trial." Sellars v. McCullough, 1989 OK 155, ¶ 9, 784 P.2d 1060, 1062-1063. ¶15 The very purpose of an objection to jury instructions is "to inform the trial judge that it is error to give the same to the jury; and an exception to an instruction after the verdict has been returned comes too late." Baker v. Shaw, 1938 OK 628, ¶ 6, 86 P.2d 319. Indeed, this Court has found that the failure to timely provide an objection to a jury instruction amounts to a waiver of the alleged error. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 13, 107 P.3d 595, 602-603 (alleged defect in a blank verdict form must be lodged before the form is given to the jury and failure to do so constitutes waiver of the error). ¶16 In Capshaw, the appellee complained of error in a verdict form presented to the jury. Both parties had submitted their own verdict forms and the trial court then rendered its version. Neither party objected at trial to the form given by the trial court. For the first time in a motion for new trial, appellee raised the issue of error regarding giving the form to the jury. The Court held that an exception to the verdict form "may not be interposed for the first time in a motion for new trial. To preserve that error for review here, Capshaw must have excepted to the blank verdict form at the pre-submission stage of the case, i.e., simultaneously with exceptions to jury instructions." Id. See also Anderson v. O'Donoghue, 1983 OK 76, ¶ 12, 677 P.2d 648, 652 (Absent proper objections, review on appeal is limited to erroneous statements of fundamental law appearing on the face of the instructions given). ¶17 In this appeal, COCA utilized an erroneous standard of review in overturning the trial court's denial of the motion for new trial. Instead, citing Smicklas v. Spitz, 1992 OK 145, 846 P.2d 362, COCA examined the jury instructions on whether the jurors were misled and thereby would have reached a different result. This standard of review only applies when a party has properly preserved an error through objection "into the record in open court...after the reading of all instructions" and before the case has been given to the jury for deliberation. 12 O.S. 2011, § 578. COCA issued its opinion in the case before it ever received the Masqueliers' timely answer brief and, consequently, failed to acknowledge the argument that the Farrises waived their right to object to the jury instructions. We examine the allegations of error below. A. Instruction No. 19, Negligence Per Se ¶18 With respect to Instruction No. 19, the negligence per se instruction, counsel for the Farrises stated on the record before the instructions were given to the jury: "We also believe that the negligence, per se, instruction should be submitted as we had provided it, with the specific references to the statutes that have been involved here -- that are being followed here. I think that's it, Your Honor." Trial Transcript, Vol. 8, page 1659, lines 17-22. As read by the trial court to the jury, Instruction No.19 provides: In addition to the duty to exercise ordinary care there are also duties imposed by [statutes/ordinances]. If you find that a person violated any law and the violation was the direct cause of the injury, then such violation in and of itself would make such person negligent. There was in force and effect in Oklahoma at the time of the occurrence the following statutes: Title 82, chapter 14 creating the Oklahoma Water Resources Board. (including OAC 785:25-3-7 (A)(1) which states: All dams subject to the Oklahoma Water Resources Board's jurisdiction shall have at least one outlet conduit of sufficient capacity to prevent interference with natural streamflow and injury of downstream appropriators and domestic users. An administrative agency such as the Oklahoma Water Resources Board, which has been empowered by the State of Oklahoma to administer certain of the laws of the State of Oklahoma, may enact rules and regulations to do so. You are instructed that such rules and regulations enacted by an administrative agency have the force and effect of law, just as if they were enacted by the Oklahoma State legislature. The Farrises' proposed instruction regarding negligence per se, Instruction No. 22, filed of record on July 5, 2017, reads: Negligence per se -- Violation of Statute, Regulation, or Ordinance In addition to the duty to exercise ordinary care there are also duties imposed by law. If you find that any of the Defendants violated any one of the following statutes or regulations and the violation was the direct cause of an injury to any of the Plaintiffs, then such violation in and of itself makes the Defendant or Defendants violating any one of the following statutes or regulations negligent, per se. The following statutes and regulations have been in force and effect in Oklahoma since before 2014 to the present: 60 O.S. § 105.5: Any person having a right to the use of water from a stream as defined by this act or Section in Title 60 of the Oklahoma Statutes whose right is impaired by the act or acts of another, or others, may bring suit in the district court of any county in which any of the acts complained of occurred. Authority: Okla. Uniform Jury Inst. No. 9.10 (modified); 27A O.S. § 2-6- 105(A); 27A O.S. § 2-6-205(A); OAC 252:606-8-3(c)(17); OAC 252:606-8- 6(b)(7). ¶19 The Farrises admit to a scrivener's error in citing a non-existing statute, 60 O.S. § 105.5. On appeal, they assert the statute should have cited 60 O.S. § 60, yet the body of the statute cited in full was 82 O.S. § 105.5. The Farrises also assert that they submitted a later version of their proposed jury instructions which included both, 60 O.S. § 60 and 82 O.S. § 105.5, as well as a cite to the OAC ordinance the trial court cited; however, there is no such filing reflected in the record.7 Nevertheless, the Farrises attached those proposed instructions, for the first time, to their brief presented to COCA on appeal. Because the instructions were not filed in the case and do not appear to be supported by the record, we will not consider them for the first time on appeal. See Okla.Sup.Ct.R. 1.11(e), 1.26(a) and (b), and 1.33(d). See also, Chamberlin v. Chamberlin, 1986 OK 30, 4, 720 P.2d 721, 723-724 (any material or instrument not incorporated into the assembled record by a certificate of the clerk of the trial court may not supplement a deficient record by attaching it to a party's appellate brief); Boyle v. ASAP Energy, Inc., 2017 OK 82, ¶ 5, 408 P.3d 183, 187 (Any material incorporated by reference in the trial court must appear in the appellate record when that material is used to support or attack a judgment or ruling that is the subject of the appeal.). ¶20 Instruction No. 19, as given to the jury, mirrors OUJI No. 9.10. It sets forth the correct definition of negligence per se8 and includes a specific OWRB ordinance, OAC, 785:25-3-7 (A)(1), pertaining to dam construction requirements and the prohibition of interference with the natural streamflow of downstream property owners for both domestic and appropriative rights. This alleged interference of domestic and appropriative right is the very heart of the Farrises' negligence per se claim. While the instruction does not contain a caption identifying itself as a "negligence per se" instruction, this omission is not a misstatement of the law. The Farrises assert the jury's query as to a definition of negligence per se constituted proof of the instruction's error. However, the trial court properly pointed the jury to Instruction No. 19 to find the answer as it was defined by Oklahoma's uniform jury instructions. ¶21 At no time before the instructions were submitted to the jury did the Farrises object to the lack of negligence per se in the title of the instruction as required by § 578 or claim that the instruction was misleading. Moreover, even if they had so objected, we do not find that failure to include the term "negligence per se" in the title would be grounds for overturning the trial court's decision or the jury's verdict. When appellate courts consider error in a jury instruction, the entire set of instructions is considered as a whole. Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92. See also ABC Coating Co., Inc. V. J. Harris & Sons, Ltd., 1986 OK 28, ¶ 24, 747 P.2d 266, 271 (jury instructions are meant to be read as a whole and when they fairly submit the issues to the jury, any harmless or immaterial error will not suffice to disturb the jury verdict.) The instructions need not be ideal, but they must reflect Oklahoma law regarding the subject at issue. Id. at ¶ 9, 45 P.3d at 90-91. Here, Instruction No. 19 fairly instructed the jury as to the negligence per se claim by providing the definition of the term and a specific reference to the law that the Masqueliers allegedly violated. ¶22 Next, the Farrises contend that the negligence per se instruction should have also included a citation to statutes, 60 O.S. § 60 and 82 O.S. § 105.5. It is not the duty of the trial court to frame the trial issues in the jury instructions but rather to state the law correctly. Sellars v. McCullough, 1989 OK 155, ¶ 9, 784 P.2d 1060,1062. Once the court has done so it becomes the responsibility of the parties to request a more specific instruction. Bane v. Anderson, Bryant & Co., 1989 OK 140, ¶ 26, 786 P.2d 1230, 1236. A party who fails to preserve an issue for appeal by objecting in a timely manner to an instruction or by neglecting to offer a proper instruction has waived review of that issue on appeal. Id. at ¶ 24, 786 P.2d at 1236. ¶23 After all the evidence was received at trial in the underlying matter, the trial court determined that OAC 785:25-3-7(A)(1) was the most pertinent ordinance supporting the Farrises' negligence per se claim as to the interference with the natural streamflow. The Farrises did not object to these instructions, aside from a statement that the instruction "should be submitted as we had provided it, with the specific references to the statutes that have been involved here..." However, the only difference between the trial court's negligence per se instruction and the Farrises' proposed instruction (the one filed of record) is the inclusion of an additional statute with an incorrect citation. As previously discussed, the statute cited in full by counsel for the Farrises was 82 O.S.2011 § 105.5, not 60 O.S.2011, § 60. Section 105.5 adds nothing to the substance of a negligence per se claim nor does it provide the requisite basis for such a claim. Indeed, this statute allows a party the procedural right to bring suit in the county district court where the allegations of impairment occurred. The alleged "impairment" is the interference with the natural streamflow referenced in OAC 285:25-3-7(A)(1) and appropriately included in the trial court's instruction. ¶24 Additionally, at no time before the jury instructions were submitted to the jury did the Farrises catch their citation error or request that 60 O.S.2011, § 60 be included within the instruction. They also failed to cite any authority in support of their argument the requested statute should have been referenced. In fact, in closing arguments to the jury, the Farrises' counsel specifically brought the entirety of Instruction No. 19 to the jury's attention, putting it up on the courtroom monitor and emphasizing that this instruction was their "negligence per se" claim and that it is "negligence, per se, to fail to allow the natural streamflow to go by." ¶25 Indeed, there is nothing at all in the Farrises' proposed jury instruction of record, Instruction No. 22, that even mentions this interference with the natural streamflow and their domestic or appropriative rights which is the crux of their claims. The trial court's instruction adequately covers this issue in its citation to the relevant ordinance, OAC 285:25-3-7(A)(1). The portion of 60 O.S. 2011, § 60 that would be relevant to the underlying case covers exactly what the court set forth in the OWRB ordinance, i.e., that interference with the natural streamflow of a definite stream is not permitted. Thus, even if the alleged error regarding the absence of pertinent statutory authority was properly preserved, there is nothing to indicate the trial court's refusal to give the Farrises' proposed instruction--either the one filed of record or the one referenced in their appellate brief--constituted error, fundamental or harmless. Accordingly, the trial court's decision, and the jury's verdict, must stand. B. Jury Instructions regarding the Role of the OWRB ¶26 We now turn to the Farrises' blanket assertion that the trial court failed to properly instruct the jury regarding the role of the OWRB in this case or that the trial court erred in its "perceived import regarding OWRB involvement." Though required by our rules, the Farrises do not cite to specific allegations of error within the record or within the jury instructions as it relates to this alleged OWRB reference error. Okla.Sup.Ct.R. 1.11(e)("Where a party complains of an instruction given or refused, the party shall cite to the place in the record on appeal where said instruction may be found, together with the objection thereto."). The Farrises are unable to comply with this rule because they failed to object to the OWRB's portrayal in the jury instructions at any time prior to the submission of those instructions to the jury, or at all during the trial. They also failed to raise this issue as a concern in their motion for new trial. ¶27 Our own review of the instructions as a whole and the record on appeal indicates that both parties, in fact, referenced the OWRB and the permit hearings often throughout trial through their own witnesses and with their exhibits. For example, Instruction No. 9 contains a section of "Stipulated Facts" which provide that the OWRB "is an agency of the State of Oklahoma that issues use permits for water in Oklahoma." The stipulations further acknowledge the hearing before the OWRB and the agency's findings of fact and conclusions of law, which were not appealed by either party. Instruction No. 9 also contains a section which highlights the Farrises' claims, one of which recognizes the importance of the OWRB findings by claiming that the "defendants have violated state law by holding water in excess of the amount allowed by the Oklahoma Water Resources Board and by not allowing sufficient water to flow downstream as required by the OWRB." ¶28 Additionally, the trial court gave Instruction No. 10 to the jury.9 This instruction specifically highlights that the law allows the Farrises to make their claims of injury despite a validly issued OWRB permit. There is nothing within these instructions, or the remaining instructions as a whole, that would indicate an undue emphasis on the role of the OWRB which constitutes reversible error. It is perplexing as to how the mention of the OWRB's involvement in this matter could be avoided. Both parties referenced it freely to no objections by either. The Farrises' failure to raise any objection to this alleged undue emphasis which would've allowed the trial court to rectify it is fatal. The trial court was prevented from correcting any perceived error at trial on this issue. This constitutes a waiver of the argument and it is not one which we will address for the first time on appeal. Oklahoma Dept. of Securities ex rel. Faught v. Wilcox, 2011 OK 82, ¶ 17, 267 P.3d 106, 110 (errors not raised before the trial court will not be heard for the first time on appeal). C. Remaining Contentions ¶29 COCA acknowledged additional claims of error by the Farrises with respect to rulings in limine by the trial court. For example, COCA held that the district court improperly found that the Farrises were required to provide their own water storage system before claiming any interference with their water rights as a result of the Masqueliers' dam. To the contrary, there is nothing in the record that would indicate the trial court made such a factual statement to the jury and the Farrises proffer no support thereof. This claimed error instead arises out of a motion in limine ruling wherein the trial court overruled the Farrises motion to exclude certain evidence pertaining to the OWRB's condition that the Farrises build a storage system before attempting to assert a claim of interference against the Masqueliers. ¶30 A ruling on a motion in limine is preliminary and advisory in nature. A party aggrieved by such a ruling must raise the issue when it arises during trial, "either by objecting when the challenged evidence is admitted or by making an offer of proof if the question involves excluded matter." Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92-93, citing Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc., 1985 OK 66, ¶ 12, 713 P.2d 572, 579. Error is committed, if at all, when during trial the issue is raised and the court rules on the matter. ¶31 Here, the Farrises cite to no objection in the record or an offer proof regarding the subject of this limine ruling at trial. They further failed to raise it in their motion for new trial. The trial court's alleged error in the pretrial limine ruling is, accordingly, not preserved for appeal. ¶32 Finally, the record is devoid of any objections made on the record at trial by the Farrises with respect to any other rulings on motions in limine or any other allegations of error at trial. As such, any remaining claims of error are likewise waived for failure to preserve the alleged errors for appeal. Johnson v. Ford Motor Co., supra, ¶ 16, 45 P.3d at 92-93. II. Masqueliers' Counter-Appeal for Attorney Fees. ¶33 The Masqueliers counter-appealed for an award of attorney fees claiming their entitlement to such fees pursuant to 12 O.S.2011, § 940 (A). This statute provides: "In any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney's fees, court costs and interest to be set by the court and to be taxed and collected as other costs of the action." 12 O.S.2011, § 940 (A). The trial court denied the Masqueliers' request ruling that 12 O.S.2011, § 940 was inapplicable "because Plaintiffs did not bring a claim for 'negligent or willful injury to property....'" ¶34 The Farrises argue that they never alleged that their real property was physically damaged but instead that the Masqueliers deprived the Farrises of their right to access water in the Creek. They claim that the lack of natural streamflow prohibited them from being able to adequately water their livestock or irrigate their crops. This, they allege, is insufficient to trigger an award of fees under § 940. ¶35 The Masqueliers point out numerous references within the Farrises' trial pleadings wherein they assert property damages caused by the alleged impairment of water from the Creek. Specifically, the Farrises claimed "loss or injury to cattle," "loss or injury to fruit trees and row crop vegetables," "loss or injury to hunting operations," and "loss of irrigation capabilities." They also alleged the inability to water caused weeds to grow on their property which led to their cattle's inability to feed on necessary grasses. Finally, the Farrises claimed a diminution in their property's value caused by the impairment of the Creek's natural streamflow. ¶36 The Farrises sought, and were granted, a jury instruction on the matter of their damages to real property.10 To argue after they were unsuccessful at trial that they weren't seeking damages for the alleged negligent injuries to their property is disingenuous. We find the Masqueliers are entitled to an award of their reasonable attorney fees and reverse the matter to the trial court for a determination of the proper amount of fees to award. CONCLUSION ¶37 The trial court properly instructed the jury in this case and the jury verdict should not be overturned on appeal. There was no misstatement of the law by the trial court which would constitute fundamental error. We find the Farrises failed to properly preserve their objections to the alleged errors but, even if they had, we do not find under the lesser standard that the jurors were misled in any way nor would they have likely reached a different result than they would have reached had the Farrises' allegations of error been resolved in their favor. The jury evaluated the facts, evidence, and law in finding for the Masqueliers on all claims and their verdict should stand. Accordingly, we vacate the COCA opinion and affirm the trial court's judgment on the motion for new trial. We reverse the trial court's denial of attorney fees and remand for a determination of an award of reasonable fees. The jury's verdict is hereby reinstated. CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE TRIAL COURT'S JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. CONCUR: DARBY, C.J., KANE, V.C.J., WINCHESTER, EDMONDSON, COMBS, GURICH, KUEHN, JJ. CONCUR IN PART, DISSENT IN PART: ROWE, J. (by separate writing) NOT PARTICIPATING: KAUGER, J. FOOTNOTES 1 The Farris application with the OWRB was filed only by JoLana Farris as she is the sole owner of the land in question. 2 The Farrises requested appropriation of 68.5 acre-feet of Creek water to irrigate their fruit trees and to grow crops and vegetables. The Masqueliers sought appropriation of 148 acre-feet per year, comprised of 45 acre-feet for irrigating pastures and crops and an additional 103 acre-feet for drilling and primary completion of oil and gas wells. The OWRB determined that 515 acre-feet of water per year was available for appropriation to downstream users from the Creek, an amount well in excess of that requested by the parties. 3 In the Masqueliers' permit Order, the OWRB noted that the evidence reflected that the Farrises would need to construct storage to make use of the stream water. The OWRB stated: "Until such time as protestants' [Farrises] plans are finalized, implemented and constructed...they are unable to demonstrate the need for applicant [Masqueliers] to release water for protestants' proposed irrigation needs. For that reason, protestants are unable to currently establish that the applicant's proposed use will interfere with any existing, or pending, appropriative use." 4 The OWRB Order, issued January 16, 2016, provides in pertinent part: 48. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Application No. 2014-007 in the name of Preston W. Masquelier and Candy Masquelier shall be and the same is hereby approved subject to the terms which follow. A regular permit shall be issued to authorize use of a total of 148 acre-feet of stream water per year at a maximum rate of withdrawal of 400 gpm from two points of diversion on a private pond located in the NE SW SW of Section 1, T15N, R14WIM, Custer County, which pond is located on an unnamed tributary of the upper Canadian River, referenced by the parties as "Crow Springs Creek", of which 45 acre-feet is for irrigation of pasture grass, wheat, soybeans, cotton, winter wheat, milo, peanuts, alfalfa, and Bermuda grass, and 103 acre-feet is for drilling and primary completion of oil and gas wells within Stream System 2-6-3. The area of use is 286.5 acres in the W/2 of Section 1, T15N, R14WIM, Custer County as more specifically described in the application. 49. IT IS FURTHER ORDERED that in addition to any other general stream water permit conditions which are applicable but not specifically identified herein, the permit shall state the following specific conditions: a. The use of stream water under this permit shall not interfere with domestic or existing appropriative uses. If any such interference is proven after the permit is issued, then this permit may be modified, suspended or revoked as appropriate in order to abate and prevent such interference. b. The applicants shall provide a continuous, minimum flow of stream water past the dam by means of a method certified by a professional engineer and documented and approved by Board staff prior to any diversion of water pursuant to this permit, which method provides a minimum flow rate of 12.2 gpm past the dam. The required minimum flow shall be continuously provided unless the Applicants demonstrate to the satisfaction of Board staff that the amount of water stored in the pond is below the applicants' two (2) year supply of domestic use recognized in 82 O.S. § 105.2(A). c. Applicants shall install and at all times maintain in operable condition the Board required valve on the siphon. d. Pursuant to OAC 785:20-7-2(12), within 30 days of the date of this Order, and prior to authorized diversion, the applicants shall provide to Board staff a Right of Access satisfactory to Board staff providing applicant the right to cross with applicant's water lines the NW/4 of Section 1, T15N, R14WIM, Custer County. e. Under OAC 785:20-7-2(13), because applicants lease the NW/4 of Section 1, T15N, R14WIM, Custer County where the water is authorized to be used for irrigation, the permit shall expire upon termination of the lease or renewals thereof unless the permit is transferred to the owner of the land within thirty (30) days of the effective date of such renewal. 5 The pertinent part of Inst. No. 9 to which the Farrises objected is as follows: Defendant claims: (3) There is no merit or legal support for Plaintiffs' negligence, negligence per se, unjust enrichment, injunctive or nuisance claims. Masqueliers deny that they interfered with their water use and that the natural flow of that which enters the Masqueliers land is exiting it. Defendant claims that Plaintiffs have failed to ever produce any actual evidence that the water that enters Defendants' land is not exiting it, particularly since the stream itself begins on the Masqueliers' property. Defendant Masqueliers claim that Plaintiffs allege that the mere fact that the dam was built is evidence of interference with the natural flow. (4) Likewise, Plaintiffs cannot prove any interference with or injury to their appropriative (permit) uses because they have never attempted to irrigate. Defendant Masqueliers allege that plaintiffs cannot prove injury unless plaintiff's actually have a need for it (to irrigate crops). Defendants Masqueliers allege that Plaintiffs have no evidence that their appropriative uses were actually interfered with, because they have never attempted to capture and use the water. Defendant Masqueliers allege that Plaintiffs should first show that they have stored the stream water and use it before any determination about interference can occur. Defendant Masquliers [sic] allege that since Plaintiffs have not begun any of the works required by the OWRB Order granting their stream water permit, Plaintiffs have not proven a need for water required for their appropriative uses and that they have sustained no harm. 6 Instruction No. 10 as given provides: A permit was granted by Oklahoma Water Resources Board (OWRB). Conditions were imposed by the OWRB. This case is a civil action by Plaintiff alleging nuisance, interference, negligence and unjust enrichment and the law allows this jury to decide if Plaintiff has been injured in these ways even though the Defendants, Masquelier, have a permit to build the dam and withdraw water for sale. The law allows the Plaintiff to make these claims and attempt to prove those claims even though the activity that Plaintiffs alleged caused the injury is done under a permit issued by the OWRB. Plaintiffs allege two things: First, they alleged that defendants, Masquelier, have not complied with conditions imposed on the permit by the OWRB and they are injured by the failure. Second, Plaintiffs allege that the activity injures them in the stated ways even if Defendants, Masquelier, are complying with the conditions imposed on them. The law allows the jury to decide if Plaintiffs have been injured in any of these ways under either theory of recovery. 7 As attached to their brief-in-chief before COCA, the Farrises' proposed Instruction No. 23 reads as follows: Negligence per se -- Violation of Statute, Regulation, or Ordinance In addition to the duty to exercise ordinary care there are also duties imposed by law. If you find that any of the Defendants violated any one of the following statutes or regulations and the violation was the direct cause of an injury to any of the Plaintiffs, then such violation in and of itself makes the Defendant or Defendants violating any one of the following statutes or regulations negligent, per se. The following statutes and regulations have been in force and effect in Oklahoma since before 2014 to the present: 82 O.S. § 105.5: Any person having a right to the use of water from a stream as defined by this act or Section in Title 60 of the Oklahoma Statutes whose right is impaired by the act or acts of another, or others, may bring suit in the district court of any county in which any of the acts complained of occurred. 60 O.S. § 60: Water running in a definite stream, formed by nature over or under the surface, may be used by the owner of the land riparian to the stream for domestic uses as defined in Section 105.1 of Title 82 of the Oklahoma Statutes, but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same, as such water then becomes public water and is subject to appropriation for the benefit and welfare of the people of the state, as provided by law; Provided however, that nothing contained herein shall prevent the owner of land from damming up or otherwise using the bed of a stream on his land for the collection or storage of waters in an amount not to exceed that which he owns, by virtue of the first sentence of this section so long as he provides for the continued natural flow of the stream in an amount equal to that which entered his land less the uses allowed for domestic uses and for valid appropriations made pursuant to Title 82 of the Oklahoma Statutes; provided further, that nothing contained herein shall be construed to limit the powers of the Oklahoma Water Resources Board to grant permission to build or alter structures on a stream pursuant to Title 82 of the Oklahoma Statutes to provide for the storage of additional water the use of which the landowner has or acquires by virtue of this act. OAC 785:25-3-7 (A)(1) which states: All dams subject to the Oklahoma Water Resources Board's jurisdiction shall have at least one outlet conduit of sufficient capacity to prevent interference with natural streamflow and injury of downstream appropriators and domestic users. 8 Negligence per se requires a violation of a statute or an ordinance that was created to protect against the type of injury suffered by the plaintiff. Boyles v. Okla. Nat. Gas Co., 1980 OK 163, ¶14, 619 P.2d 613, 618. 9 See, supra, footnote 6. 10 Instruction No. 42, as given to the jury stated: Damages to Real Property Real property consists of land. Damage to real property can be either temporary or permanent or both. If you find for Plaintiff JoLana Farris and/or Plaintiff Mark Farris on their claims of negligence or nuisance, you may award damages for all temporary and permanent injuries to the real property owned by Plaintiff Mark Farris and JoLana Farris. Temporary damages are those that can be remedied by a reasonable expenditure of money within a reasonable period of time. Damages are permanent if the injuries cannot be remedied by an expenditure of money or labor. The measure of damages for permanent injury to real property is the difference between the reasonable market value of the land immediately before the injuries and the reasonable market value of the land immediately after the injuries--in other words, the amount of the lost value of the property resulting from the injurious conduct. For temporary injuries to real property, damages are measured by the cost of restoring the land to its former condition, with compensation for the loss of use of it, if this altogether is less than the diminution in value with the injuries left standing. However, for temporary nuisances, damages are limited to those sustained at the time of the filing of the action. (Authority omitted) ROWE, J., concurring in part, dissenting in part: ¶1 I concur in the Court's judgment vacating COCA's opinion and affirming the trial court's denial of Plaintiffs'/Appellants' motion for a new trial. I dissent, however, from the Court's finding that Defendants/Appellees are entitled to attorney fees.

bfff3d0a-d645-42b1-99e2-dc026b90325f

Arulkumar v. Arulkumar

oklahoma

Oklahoma Supreme Court

ARULKUMAR v. ARULKUMAR2022 OK 90Case Number: 119675Decided: 11/15/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE THE MARRIAGE OF: RAISA ARULKUMAR, Petitioner/Appellant, v. SAILESH ARULKUMAR, Respondent/Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Martha Oakes, District Judge ¶0 Mother gave notice of her intent to relocate with the parties' only child from Oklahoma City to New York City to which Father timely objected. Although finding Mother's request was made in good faith, the trial court denied the relocation request finding Father met his burden showing relocation was not in the child's best interest. Mother appealed the trial court's ruling, and we retained the matter. We hold the trial court did not abuse its discretion in denying Mother's proposed relocation. MATTER PREVIOUSLY RETAINED FOR DISPOSITION; JUDGMENT OF THE TRIAL COURT AFFIRMED. Ryan J. Reaves and Maggie Lanier, Mullins Mullins Sexton & Reaves, P.C., Oklahoma City, Oklahoma, for Petitioner/Appellant. John W. Gile, Matthew R. Gile, and Leslie D. Gile-Erwin, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Respondent/Appellee. ROWE, J: I. BACKGROUND ¶1 Raisa Pinto ("Mother") and Sailesh Arulkumar ("Father") were married in 2015. Both parents are trained physicians who attended medical school in India. Mother is licensed to practice in Hematology and Oncology. Father is an anesthesiologist practicing in the area of pain management. In the summer of 2017, the couple moved to Oklahoma to allow Mother to attend a three-year Hematology and Oncology fellowship at the University of Oklahoma Health Sciences Center ("OUHSC"). In July 2017, shortly after beginning her fellowship, Mother gave birth to the couple's only child. At the time, Father was working in Tulsa, commuting from the couple's home in Oklahoma City. He later took a job in Oklahoma City to reduce his commute time. ¶2 The couple's marriage eventually deteriorated, and in April 2018, Mother filed for divorce in Oklahoma County. On January 10, 2020, the trial court granted the couple's divorce on the grounds of incompatibility. In its order, the trial court designated Mother as the custodial parent, but ordered equal visitation time. The couple has adhered to the custody plan and split time with their child equally since the divorce. ¶3 While completing the final year of her fellowship, Mother began her search for employment. During her job search, Mother applied to 120 positions and underwent thirty interviews. Of those interviews, Mother received seven job offers for positions located in California, New York, and Pennsylvania. Mother did not receive any job offers in Oklahoma.1 ¶4 On August 17, 2020, prior to accepting an out of state job offer, Mother contacted Father to inquire if he knew of any job openings in Oklahoma. The next day Mother accepted an offer from Mount Sinai Hospital in New York. Later that month, Mother notified Father of her intent to relocate to which Father timely objected. Subsequently, Mother filed an application for temporary order permitting relocation during the pendency of litigation on her original request to relocate. Mother's temporary order request was denied on November 18, 2020, and at the same hearing, the trial court appointed a Guardian Ad Litem ("GAL"). ¶5 The parties litigated Mother's relocation application in March 2021. The trial court received evidence concerning Mother's job search and employment opportunity in New York; Mother and Father's relationship with the child; the child's life and educational opportunities in Oklahoma and New York; the child's relationship with each parent's other family members; the likely impact of travel on the child; and the impact of proposed visitation schedules on the child. The trial court determined Mother's request was made in good faith, which shifted the burden to Father to show the proposed relocation was not in child's best interest. The trial court found Father met his burden and denied Mother's request to relocate. ¶6 Mother appealed alleging five counts of error: (1) the court erred by placing undue weight on maintaining Father's existing visitation; (2) the court erred in applying the relocation factors; (3) the court erred by assuming Mother would remain in Oklahoma if relocation was denied; (4) the trial judge erred in failing to consider alternative visitation schedules; and (5) the court erred by relying on prejudicial testimony from the Guardian Ad Litem. We retained the matter for review. II. STANDARD OF REVIEW ¶7 In child custody cases, the best interest of the child is the paramount consideration. We will not disturb the trial court's judgment regarding custody absent an abuse of discretion. Scocos v. Scocos, 2016 OK 36, ¶ 5, 369 P.3d 1068, 1070 (quoting Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871). This Court has said that "an abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶ 12, 27 P.3d 477, 481. We give deference to the trial court in reviewing custody decisions because the trial judge had the opportunity to listen to evidence, observe the witnesses and parties, and ask questions. Scocos, ¶ 5, 369 P.3d at 1070. Only when the ruling is contrary to the evidence or where there is no rational basis in evidence will we reverse. Fent, ¶ 12, 27 P.3d at 481. III. DISCUSSION ¶8 A custodial parent has a right to change his or her residence "subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child." 43 O.S.2011, § 112.2 A. 2 The relocating parent must supply the nonrelocating parent with notice of a proposed relocation which allows an opportunity for objection. 43 O.S.2011, § 112.3(B)(1).3 If there is an objection, the relocating parent "has the burden of proof that the proposed relocation is made in good faith." 43 O.S.2011, § 112.3(K).4 If that burden of proof is met, the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child. Id. In determining whether relocation serves the child's best interest, the court must consider the following non-exhaustive list of statutory factors: a. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life, b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child, c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties, d. the child's preference, taking into consideration the age and maturity of the child, e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person, f. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity, g. the reasons of each person for seeking or opposing the relocation, and h. any other factor affecting the best interest of the child. 43 O.S.2011, § 112.3(J)(1). No one factor is dispositive or should be given more weight than the other factors. A trial court is to consider and weigh all the evidence relevant to each factor and decide whether the factor weighs in favor of relocation, against relocation, or is neutral. A. The Trial Court Did Not Place Undue Weight on Maintaining Father's Visitation. ¶9 Mother asserts the trial court placed undue weight on preserving Father's visitation in denying her proposed relocation. Mother relies upon Scocos v. Scocos, 2016 OK 36, 369 P.3d 1068, wherein we stated "visitation rights alone are an insufficient basis on which to deny relocation," and a "custodial parent's relocation should not be disallowed solely to 'maintain the existing visitation patterns.'" Scocos, ¶ 16, 369 P.3d at 1073 (quoting Kaiser v. Kaiser, 2001 OK 30, ¶ 29, 23 P.3d 278, 286). ¶10 In Scocos, the father failed to present any evidence that Mother was unfit or that the move would not be in the best interest of the child. Father's only concern was the interruption to his visitation, which "is understandably difficult and upsetting for him, but maintaining his existing visitation schedule did not justify the district court's order restricting mother's ability to leave Oklahoma to pursue her career opportunity and attempt to find a better life for herself and their child." Id., ¶ 16, 369 P.3d at 1073 (quoting Kaiser v. Kaiser, 2001 OK 30, ¶ 29, 23 P.3d 278, 286). Father in the present case provided ample evidence demonstrating the move would not be in the best interest of the child, but Mother argues the trial court exclusively relied on the interruption to Father's visitation to support its denial of Mother's request to relocate. ¶11 Considering a change in visitation is relevant to the best interest inquiry in 43 O.S.2011, § 112.3(J)(1) even though visitation alone is an insufficient basis to deny relocation. Upon review of the record, we find the trial court's reason for denying relocation was not exclusively based upon maintaining Father's existing visitation. ¶12 The natural interrelationship of the statutory factors require that they be read in harmony, and not in isolation. Relocations inevitably produce distance and changes in familial relationships, which undoubtedly impact a child's development and quality of life. We will not impose an unreasonable burden on trial courts to consider each of the statutory factors in isolation, as most factors and the facts that are applied are naturally intertwined. While it is true that the trial court discussed Father's day-to-day involvement with the child and his current visitation throughout its ruling, this was not an abuse of discretion. Accordingly, we find the trial court did not place undue weight on maintaining Father's visitation when applying each factor. B. The Trial Court Correctly Applied Each Factor. ¶13 Mother contends the trial court abused its discretion in applying the relocation factors by failing to appropriately weigh each factor, such that the trial court's ruling is contrary to the evidence. The trial court acknowledged the loving relationship both parents share with their child and their involvement in his life. The trial court noted that maintaining Father's relationship with child living in New York is not feasible due to distance and travel logistics. And the trial court considered the child's familial relationships with each parent's family and the effect of relocation on those relationships. ¶14 The trial court also weighed the effect of relocation on the child's emotional and educational development. For example, the court determined the distance created by Mother's relocation would almost certainly deprive the child of his close bond with Father and Father's family, which would negatively impact his emotional development. Regarding the child's educational development, the trial court determined long travel days twice a month would almost certainly result in the child missing a Monday or Friday at school, which could be detrimental to his learning and performance. ¶15 Additionally, the trial court contemplated whether the proposed relocation would enhance the general quality of life for both Mother and child. The trial court considered Mother's job opportunity, finances, commute to and from work, and access to museums, theaters, and other cultural opportunities. The trial court found that while Mother's quality of life may improve with her job, the child's life would not necessarily be enhanced when compared to his quality of life in Oklahoma. ¶16 Ultimately, the trial court found the proposed relocation would deprive the child of a relationship with his Father and affect his emotional and educational development, while affording no material improvement in his quality of life. The trial court's findings as to each factor has a rational basis in the evidence presented. Accordingly, we find no abuse of discretion in the trial court's application of the relevant factors. C. The Trial Court Did Not Base its Decision on the Assumption Mother Would Remain in Oklahoma if Her Relocation Request Was Denied. ¶17 When considering a relocation request, the trial court is prohibited from considering "whether the person seeking relocation of the child has declared that he or she will not relocate if relocation of the child is denied." 43 O.S.2011, § 112.3(J)(2)(b).5 To trigger § 112.3(J)(2)(b), the relocating party must declare that he or she will not relocate if the relocation request is denied. Here, the record does not reflect that Mother made a declaration as to her intentions if relocation was denied. ¶18 Mother contends nonetheless that the trial court violated § 112.3(J)(2)(b) by assuming she would remain in Oklahoma if her relocation request was denied. To support her contention, Mother asserts the trial court only considered two possible outcomes when denying her request to relocate: (1) Mother and child living in New York; or (2) both parents remaining in Oklahoma. We reject Mother's contention that the trial court operated on such an assumption.6 ¶19 The purpose of § 112.3(J)(2)(b) is to prevent trial courts from considering a relocating party's stated intent to remain if relocation is denied. Consideration of a stated intent to remain runs the risk of circumventing application of the statutory factors and a thorough review of the merits of a requested relocation. We find no evidence the trial court engaged in a cursory analysis of the relocation factors or that the trial court based its decision primarily on the alleged assumption that Mother would remain in Oklahoma if relocation was denied. The record reflects the trial court engaged in a thorough and deliberate analysis of each relocation factor. Accordingly, we find the trial court did not violate § 112.3(J)(2)(b). D. The Trial Court Did Not Err by Not Crafting or Considering Alternative Visitation Schedules. ¶20 Relying upon Harrison v. Morgan, 2008 OK CIV APP 68, 191 P.3d 617, Mother contends the trial court erred by failing to craft its own alternative schedule in addition to Mother's proposed schedule. In Harrison, after the couple divorced, the father gave timely notice of his intent to relocate with the children from Guymon, Oklahoma to Poteau, Oklahoma to which the mother objected. The trial court denied father's request and he appealed. When reviewing the trial court's ruling regarding factor (c),7 COCA agreed with father that the trial court's finding was contrary to existing law because it ignored the Advisory Guidelines authorized for development by the Legislature in 43 O.S.Supp.2004, § 111.1A(C).8 Harrison, ¶ 44, 191 P.3d at 627. Mother contends COCA's holding requires a trial court to consider not only schedules proposed by the parties but to consider whether any other feasible schedule might exist under the circumstances. ¶21 The statute provides that the Advisory Guidelines may be used by trial courts as deemed necessary.9 Thus, the Advisory Guidelines are permissive, not compulsory. Nothing in 43 O.S.2011, § 112.3(J)(1)(c) imposes an obligation on the trial court to craft its own visitation schedule that would best suit the parties and the child; nor does our jurisprudence require such an obligation. We decline to import COCA's holding in Harrison to the facts of this case.10 ¶22 Additionally, the record demonstrates the trial court considered Mother's proposed visitation schedule which she was questioned about on direct and cross examination, and considered the GAL's proposed alternative schedule.11 The trial court properly considered the proposed visitation schedules and committed no error by failing to craft its own alternative visitation schedule. E. The Trial Court Did Not Improperly Rely on the Guardian Ad Litem's Testimony. ¶23 A Guardian Ad Litem may be appointed to objectively advocate on behalf of the child after conducting an investigation of all matters concerning the best interests of the child. 43 O.S.Supp.2019, § 107.3(A).12 Among many responsibilities, the GAL shall present written factual reports concerning the best interest of the child to the parties and court prior to trial. Id. § 107.3(A)(2)(d).13 In addition to the responsibilities provided in § 107.3(A), a GAL "shall certify that he or she agrees to follow the best practices described within the standard operating manual." Id. § 107.3(A)(4).14 ¶24 Mother contends to the extent the trial court relied on GAL's recommendation and testimony, it erred because GAL did not advise the parties of her position prior to the hearing and her testimony was prejudicial. GAL provided the parties a comprehensive written report prior to trial detailing her investigation. Throughout her report she stated, "[t]his GAL would like to listen to the evidence presented and testimony of witnesses regarding these issues prior to presenting additional analysis on this factor and her overall recommendation of best interests."15 ¶25 Mother argues GAL was required by statute to provide the position she intended to present at trial to avoid surprise. The applicable statute requires a GAL to "present written factual reports to the parties and court prior to trial or at any other time as specified by the court on the best interests of the child, which determination is solely the decision of the court."16 The statute does not require a GAL to state her recommendation pretrial. Accordingly, we find GAL did not violate the statute by waiting until trial to make her recommendation.17 ¶26 Mother also contends the trial court erred in considering GAL's testimony because GAL failed to objectively advocate on behalf of the child as required by § 107.3(A)(2). She argues much of GAL's report and testimony was emotional, and focused substantially on her feelings, rather than the objective analysis of the facts, therein prejudicing Mother.18 Even though GAL's testimony may have been emotional, the trial court's consideration of her testimony does not constitute fundamental error on behalf of the trial court as suggested by Mother. A fundamental error compromises the integrity of the proceeding to such a degree that the error has a substantial effect on the rights of one or more of the parties. Sullivan v. Forty-Second W. Corp., 1998 OK 48, ¶ 7, 961 P.2d 801, 803. Mother has failed to demonstrate how GAL's testimony compromised the integrity of the proceeding to such a degree that the error had a substantial effect on her rights. The trial court gave appropriate weight to GAL's report and testimony. The trial court thanked GAL for her work and noted "just so that the record is clear, it's just that, a recommendation" and that "this Court does not always follow the GAL recommendations."19 Accordingly, we do not find the trial court erred in considering the report or testimony from GAL. IV. CONCLUSION ¶27 In custody cases, the paramount consideration is the best interest of the child. We will examine and weigh the trial court's record, but it is beyond our reach to disturb the trial court's decision unless it is found to be clearly contrary to the weight of the evidence. Based on our review we do not find that the trial court placed undue weight on maintaining Father's existing visitation, or that it abused its discretion in applying the statutory relocation factors. Nor do we find the trial court improperly assumed Mother would remain in Oklahoma if relocation was denied or failed to consider alternative visitation schedules. Finally, we do not find the trial court erred in considering the testimony of the Guardian Ad Litem. The trial court's judgment in denying Mother's relocation request is affirmed. MATTER PREVIOUSLY RETAINED FOR DISPOSITION; JUDGMENT OF THE TRIAL COURT AFFIRMED. Darby, C.J., Kane, V.C.J., Winchester, Edmondson, Combs, Rowe, and Kuehn, JJ., concur. Kauger and Gurich, JJ., dissent. FOOTNOTES 1 Whether Mother could have obtained employment in Oklahoma was a matter of some controversy. Throughout the good faith portion of the hearing, Mother took the position that she could not find employment in Oklahoma. Father included live testimony from Human Resources personnel from two prospective employers in Oklahoma (one in Lawton, another in Tulsa) tending to show that both employers were prepared to make offers to Mother had she requested to proceed in the interview process. In its ruling, the trial court found Mother's request was made in good faith but concluded that it was possible for Mother to find employment in Oklahoma. 2 "A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child." 43 O.S.2011, § 112.2A. 3 "B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by this section." 43 O.S.2011, § 112.3(B)(1). 4 "K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child." 43 O.S.2011, § 112.3(K). 5 "The court may not: . . . b. consider whether the person seeking relocation of the child has declared that he or she will not relocate if relocation of the child is denied." 43 O.S.2011, § 112.3(J)(2)(b). 6 Mother also contends when applying factors (a) and (b), the trial court was required to discuss and consider the effect of Mother moving without the child. Specifically, Mother states: In the present case, the trial court wholly failed to mention at any point during the ruling the effect on the minor child of Mother moving to New York while the minor child remained in Oklahoma. Such considerations are required. 43 O.S. § 112.3(J)(1)(a) requires consideration of "the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate." 43 O.S. § 112.3(J)(1)(b) requires the Court to consider "the likely impact the relocation will have on the child's physical, educational, and emotional development," which is not limited solely to addressing the effect of the move on the non-relocating party. Appellant's Reply Brief, pg. 24. The statute requires trial courts to determine what is in the best interest of the child as it pertains to the proposed relocation. Here, the proposed relocation contemplated relocation of Mother with the child, not relocation of Mother without the child. Further, nothing in the relocation factors requires a trial court to consider the prospect of the custodial parent moving without the child. 7 Factor (c) provides: "the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangement, considering the logistics and financial circumstances of the parties." 43 O.S.2011, § 112.3(J)(1)(c). 8 43 O.S.Supp.2004, § 111.1A(C) provides, "C. 1. The Administrative Director of the Courts shall develop advisory guidelines for use by the district courts when parties to any action concerning the custody of a child are unable to mutually agree upon a visitation schedule. 2. The advisory guidelines should include the following considerations at a minimum: a. a preference for visitation schedules that are mutually agreed upon by both parents over a court-imposed solution, b. a visitation schedule which should maximize the continuity and stability of the life of the child, c. special considerations should be given to each parent to make the child available to attend family functions, including funerals, weddings, family reunions, religious holidays, important ceremonies, and other significant events in the life of the child or in the life of either parent which may inadvertently conflict with the visitation schedule, d. a visitation schedule which will not interrupt the regular school hours of the child, e. a visitation schedule should reasonably accommodate the work schedule of both parents and may increase the visitation time allowed to the noncustodial parent but should not diminish the standardized visitation schedule provided in Section 111.1 of Title 43 of the Oklahoma Statutes, f. a visitation schedule should reasonably accommodate the distance between the parties and the expense of exercising visitation, g. each parent should permit and encourage liberal electronic contact during reasonable hours and uncensored mail privileges with the child, and h. each parent should be entitled to an equal division of major religious holidays celebrated by the parents, and the parent who celebrates a religious holiday that the other parent does not celebrate shall have the right to be together with the child on the religious holiday." 9 43 O.S.Supp.2004, § 111.1A(A) provides "By January 1, 2005, the Administrative Director of the Courts shall have developed a standard visitation schedule and advisory guidelines which may be used by the district courts of this state as deemed necessary." 10 We are not bound by the decisions of the Court of Civil Appeals. "The Court of Civil Appeals opinions are not binding on this Court. . ." Foshee v. Foshee, 2010 OK 85, ¶ 14, n.6, 247 P.3d 1162, 1168. 11 Examples of alternative visitation schedules considered in the trial record include: (1) discussion of sending child to pre-K and consideration of attending Pre-K in both Oklahoma and New York (Trial Tr. vol. 3, 485:17-490:15); (2) discussion of altering visitation schedule if Mother did not take the 10-day vacation (Trial Tr. vol. 2, 423:9-424:4); (3) discussion of accommodating school holiday schedules: whether child could miss school Friday if there was a Thursday holiday, or missing school on Monday if there was a Tuesday holiday (Trial Tr. vol. 3, 470:1-472:25); (4) consideration of giving Father every Christmas and Thanksgiving rather than alternating each year (Trial Tr. vol. 3, 473:1-474:6). 12 43 O.S.Supp.2019, § 107.3(A) provides "A. 1. In any proceeding when the custody or visitation of a minor child or children is contested by any party, the court may appoint an attorney at law as guardian ad litem upon motion of the court or upon application of any party to appear for and represent the minor children. 2. The guardian ad litem may be appointed to objectively advocate on behalf of the child and act as an officer of the court to investigate all matters concerning the best interests of the child. In addition to other duties required by the court and as specified by the court, a guardian ad litem shall have the following responsibilities: a. review documents, reports, records and other information relevant to the case, meet with and observe the child in appropriate settings, and interview parents, caregivers and health care providers and any other person with knowledge relevant to the case including, but not limited to, teachers, counselors and child care providers, b. advocate for the best interests of the child by participating in the case, attending any hearings in the matter and advocating for appropriate services for the child when necessary, c. monitor the best interests of the child throughout any judicial proceeding, d. present written factual reports to the parties and court prior to trial or at any other time as specified by the court on the best interests of the child, which determination is solely the decision of the court, and e. the guardian ad litem shall, as much as possible, maintain confidentiality of information related to the case and is not subject to discovery pursuant to the Oklahoma Discovery Code. 3. Expenses, costs, and attorney fees for the guardian ad litem may be allocated among the parties as determined by the court. 4. The Oklahoma Bar Association shall develop a standard operating manual for guardians ad litem which shall include, but not be limited to, legal obligations and responsibilities, information concerning child abuse, child development, domestic abuse, sexual abuse, and parent and child behavioral health and management including best practices. After publication of the manual, all guardians ad litem shall certify to the court in which he or she is appointed as a guardian ad litem that the manual has been read and all provisions contained therein are understood. The guardian ad litem shall also certify that he or she agrees to follow the best practices described within the standard operating manual. The Administrative Office of the Courts shall provide public access to the standard operating manual by providing a link to the manual on the Oklahoma State Courts Network (OSCN) website." 13 43 O.S.Supp.2019, § 107.3(A)(2(d): "present written factual reports to the parties and court prior to trial or at any other time as specified by the court on the best interests of the child, which determination is solely the decision of the court, . . ." 14 The Standard Operating Manual was drafted by the Oklahoma Bar Association Family Law Section. The committee in drafting this manual focused on what they considered were "best practices" for a GAL. The purpose of the best practices is to promote uniformity and consistency in GAL investigations; and promote respect for the rights of parties and the best interests of their children, including their safety. 15 GAL Report, p. 16, p. 19, p. 20, p. 21. 16 See, supra, n. 12. 17 Mother also contends GAL failed to follow the Standard Operating Manual. However, the Report Writing section in the Standard Operating Manual only requires a GAL to provide a recommendation in the written report if ordered by the court. Nothing in the record suggests the trial court ordered GAL to provide a recommendation. 18 During trial, GAL determined it was not in the child's best interest to move to New York and recommended the court should deny relocation. 19 Trial Tr. Ruling, 2:8-12.

a394c4da-153c-4f9c-8431-11b5c08d9f5a

Johnson v. Snow

oklahoma

Oklahoma Supreme Court

JOHNSON v. SNOW2022 OK 86Case Number: 119794Decided: 11/01/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. ARNOLD H. JOHNSON, Plaintiff/Appellee, v. DIRK M. SNOW, an individual, and DUFF M. SNOW, an individual, Defendants/Appellants, and INVESTMENT CENTERS OF AMERICA, INC., a foreign corporation, and LPL FINANCIAL, LLC, a limited liability company and successor in interest to INVESTMENT CENTERS OF AMERICA, INC., Defendants. ON APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY, STATE OF OKLAHOMA HONORABLE KORY KIRKLAND, DISTRICT JUDGE ¶0 While divorce proceedings between Plaintiff/Appellee Arnold H. Johnson (Husband) and Jacquelyn K. Johnson (Wife) were pending, Wife changed the primary beneficiary of her individual retirement account (IRA) from Husband to her adult children, Defendants/Appellants Dirk M. Snow and Duff M. Snow (collectively, Children). She also opened a new individual transfer on death (TOD) account and designated Children as the primary beneficiaries. Wife died before the divorce was granted, and the action abated. Thereafter, Husband filed the underlying declaratory judgment action to enforce the automatic temporary injunction entered in the divorce action. The district court concluded that the IRA and the funds used to open the TOD account were marital property and, therefore, Wife's acts violated the automatic temporary injunction, 43 O.S.2011 § 110(A)(1)(a), and were ineffective. The district court granted summary judgment to Husband and ordered that he be reinstated as the primary beneficiary of Wife's IRA and awarded the proceeds of the TOD account. Children appealed. We hold that when the dissolution of marriage action abated, the district court was deprived of its jurisdiction to enforce the automatic temporary injunction. It is undisputed that Children were designated as the primary beneficiaries at the time of Wife's death and, therefore, they are entitled to judgment as a matter of law. JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS TO GRANT SUMMARY JUDGMENT IN FAVOR OF APPELLANTS. Paul M. Kolker, Edmond, Oklahoma, and Christian M. Zeaman, Oklahoma City, Oklahoma, for Appellants. George H. Brown, Oklahoma City, Oklahoma, for Appellee. KANE, V.C.J.: ¶1 The threshold issue on appeal is whether the district court can enforce the automatic temporary injunction, 43 O.S. O.S.2011 § 110(A)(1), after a dissolution of marriage action abates due to the death of one spouse. We hold that it cannot. FACTS AND PROCEDURAL HISTORY ¶2 The material facts are not in dispute. Plaintiff/Appellee Arnold H. Johnson (Husband) and Jacquelyn K. Johnson (Wife) were married in 1996. In 2015, Wife designated Husband as the primary beneficiary of her traditional individual retirement account (IRA) with Investment Centers of America, Inc (ICA). On February 9, 2017, Husband filed a petition for dissolution of marriage. The automatic temporary injunction restrained the parties from "transferring, encumbering, concealing, or in any way disposing of, without the written consent of the other party or an order of the court, any marital property, except in the usual course of business . . . ." 43 O.S. § 110(A)(1)(a). An Agreed Temporary Order was entered on April 12, 2017. The Agreed Temporary Order provided that the automatic temporary injunction should remain in full force and effect. ¶3 On September 5, 2017, Wife opened an individual transfer on death account (TOD account) with ICA. Using a check from their joint checking account, Wife made an opening deposit of $32,000.00. Wife designated her adult children, Defendants/Appellants Dirk M. Snow and Duff M. Snow (collectively, Children), as the primary beneficiaries of the TOD account. ¶4 On September 8, 2017, Wife changed the beneficiary designation of her IRA by removing Husband and designating Children as the primary beneficiaries. ¶5 Wife died on November 2, 2017, and the divorce action abated. It is undisputed that Husband and Wife were still married when she died. No divorce had been granted by the court. At the time of Wife's death, Children were designated as the primary beneficiaries of both the IRA and the TOD account. ¶6 On July 24, 2018, Husband filed the underlying declaratory judgment action against Children and Defendants ICA and LPL Financial, LLC, as successor in interest to ICA.1 Husband sought declaratory and injunctive relief as to his rights in Wife's IRA. Husband and Children filed competing motions for summary judgment. Husband's position was that Wife's acts of changing the beneficiary of the IRA and opening the new TOD account with joint funds violated the automatic temporary injunction, 43 O.S. § 110(A)(1)(a), and the Agreed Temporary Order. Husband argued Wife's acts were void and that the trial court should "right a wrong and remedy an injustice based upon equitable considerations" by reinstating him as beneficiary of the IRA and awarding him the proceeds of the TOD account. Children argued they were entitled to summary judgment because the court had no authority to enforce the automatic temporary injunction or divide the marital estate after the divorce action abated. Children also argued that, even if the court had jurisdiction to enforce the automatic temporary injunction, changing the beneficiary of the IRA and opening the TOD account did not violate the automatic temporary injunction. ¶7 The trial court granted summary judgment in favor of Husband, finding that the IRA and TOD account were marital property; that "there is no sole owner of said marital property, particularly in the midst of a divorce where there is a temporary injunction in place"; that Wife's actions of changing the beneficiary of the IRA and opening the TOD account were "ineffective"; that, as a result, Husband remained the primary beneficiary of the IRA; that Husband is the owner of all funds in the IRA and the TOD account; and that Husband is entitled to immediate possession of all the funds. Children appealed. This Court retained the appeal on its own motion. STANDARD OF REVIEW ¶8 Summary judgment is reviewed de novo. Rickard v. Coulimore, 2022 OK 9, ¶ 4, 505 P.3d 920, 922. Summary judgment is appropriate only when there is no genuine controversy as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. In this case, the material facts are not in dispute.2 Therefore, only a question of law is involved. Appellate courts have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal rulings. See Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d 841, 845. ANALYSIS ¶9 Children submit eighteen issues on appeal in their Amended Petition in Error. However, this Court can resolve all allegations of error by addressing just four questions. ¶10 First, did Wife's death and the abatement of the dissolution of marriage action deprive the district court of jurisdiction to enforce the automatic temporary injunction? The threshold issue is not whether Wife violated the automatic temporary injunction; it is whether the trial court could enforce the automatic temporary injunction after the divorce action abated.3 ¶11 It has long been understood in Oklahoma that a cause of action for dissolution of marriage abates upon the death of either spouse before the entry of a final decree or final judgment. See, e.g., Pellow v. Pellow, 1985 OK 88, ¶ 23, 714 P.2d 593, 597-98; Chastain v. Posey, 1983 OK 46, ¶ 6, 665 P.2d 1179, 1181; Mabry v. Baird, 1950 OK 132, ¶ 13, 219 P.2d 234, 239. This Court has said that "[a] cause of action for a divorce is purely personal, and it has been held that such a cause of action terminates on the death of either spouse before the entry of the final decree." Pellow, 1985 OK 88, ¶ 23, 714 P.2d at 597. Fairly recently, this Court clarified that the parties' divorce or dissolution of marriage is immediately effective at the time it is pronounced by the court even if property issues remain undecided and a journal entry has not been filed. See Alexander v. Alexander, 2015 OK 52, ¶¶ 2, 12, 357 P.3d 481, 482-84 (interpreting 12 O.S.2011 § 696.2(E)). It follows that a cause of action for dissolution of marriage abates if either spouse dies before the divorce is pronounced. ¶12 When one spouse dies before the divorce is granted, "the trial court is deprived of its jurisdiction." Pellow, 1985 OK 88, ¶ 23, 714 P.2d at 597. That is because death dissolved the marriage. Id.; Mabry, 1950 OK 132, ¶ 13, 219 P.2d at 239. There are two ways to dissolve a marriage: the death of one spouse or a decree of dissolution of marriage. Dissolution of marriage or divorce is a status determination. See Pellow, 1985 OK 88, ¶ 25, 714 P.2d at 598. Death, rather than a decree, determined the surviving spouse's unmarried status. Because there is no longer a marriage for the court to dissolve by decree, there is no longer a justiciable controversy. The court is no longer able to grant the relief requested. As a result, the district court is deprived of its jurisdiction.4 ¶13 If, on the other hand, one party dies after the divorce has been granted, the cause of action does not abate, and the court retains jurisdiction to divide marital property. See Alexander, 2015 OK 52, ¶¶ 7, 18, 357 P.3d at 483, 486; Swick v. Swick, 1993 OK 151, ¶ 7, 864 P.2d 819, 821. The party's death has no legal effect on the status determination of divorce. See Swick, 1993 OK 151, ¶ 6, 864 P.2d at 821 (citing Pellow, 1985 OK 88, ¶¶ 23-25, 714 P.2d at 597-98). ¶14 Critical to our analysis is the undisputed material fact that Husband and Wife were married at the time of Wife's death. The trial court never granted a divorce.5 The parties agree--and we reach the same legal conclusion--that when Wife died the dissolution of marriage action abated as a matter of law. When the action abated, the court was deprived of its jurisdiction to proceed with the dissolution of marriage. ¶15 The parties disagree, however, as to whether the district court was also deprived of its jurisdiction to enforce the automatic temporary injunction.6 Other courts addressing this issue are split. Some states follow a bright-line approach that when a dissolution of marriage action abates due to the death of a party, the court also loses jurisdiction to enforce the temporary injunction or temporary order requiring the parties to preserve marital assets.7 Other states maintain that the court has the inherent equitable power to enforce the automatic injunction and temporary orders after the divorce action abates.8 ¶16 We find the more principled approach is to first inquire into the district court's jurisdiction.9 The Supreme Court of Alabama's analysis in Ex Parte Thomas, 54 So. 3d 356 (Ala. 2010), is persuasive. Thomas addressed the same question of law presented in this case--whether a temporary restraining order (TRO), which required parties to a divorce action to preserve their assets before division of the marital property, can be enforced after one spouse dies while the divorce action is pending. See id. at 360-61. The Alabama Supreme Court recognized the issue was purely a matter of civil procedure. The court clarified that the threshold issue on appeal was whether the court had subject matter jurisdiction over the underlying declaratory judgment action, not whether the deceased spouse violated the temporary restraining order by transferring marital property. See id. at 358-59. The Alabama Supreme Court held: [A]n interlocutory order that affects the property rights of the parties to a divorce action may not be enforced after the death of one of the parties due to the abatement of that action. Here, upon the husband's death and the subsequent abatement of the divorce action in the family court, the TRO became a nullity, which could no longer be enforced. Because the subject matter of this action is an alleged violation of a nullity (the TRO), the trial court lacked subject-matter jurisdiction over this action; therefore, the judgment of the trial court is void. Id. at 361-62 (quotations omitted) (citation omitted). ¶17 We agree with the Alabama Supreme Court that upon Wife's death and the abatement of the divorce action, the automatic temporary injunction, 43 O.S. § 110(A)(1), became a nullity that could no longer be enforced. In Oklahoma, the death of one spouse prior to the granting of a divorce "leaves the parties as though the action had never been brought." Mabry, 1950 OK 132, ¶ 13, 219 P.2d at 239. If an action for dissolution of marriage had never been brought, then it must certainly be as though the automatic temporary injunction had never been entered. It is, after all, the filing of a petition for dissolution of marriage that triggers the automatic temporary injunction. See 43 O.S. § 110(A)(1). Simply put, when the cause of action abates, the court's temporary orders and the automatic temporary injunction also terminate. See also Rader v. Rader, 2020 OK 106, ¶¶ 20, 27-28, 478 P.3d 438, 444, 446 (recognizing that the parties' joint dismissal terminated the divorce action and nullified the court's prior temporary orders as to child custody). Husband seeks to enforce a nullity. The trial court cannot grant the relief requested. We hold that the trial court was without jurisdiction10 to enforce the automatic temporary injunction after the dissolution of marriage action abated. ¶18 The trial court was without jurisdiction to declare that Wife's IRA and the funds used to open the TOD account were marital property. When Wife died and the action abated, the district court lost jurisdiction over the entire dissolution of marriage action, including property division.11 Whether the IRA and the funds used to open the TOD account were marital or separate property for purposes of dissolution of marriage became a non-issue. When Wife died, they were legally married. Husband's rights in Wife's estate are the same as if they never filed for divorce. Wife's property either became a part of her probate estate with title passing under the terms of a will or by intestate succession12 or it is non-probate property that passes to another person by operation of law or contract. The assets in the IRA and the TOD account are non-probate property that are to be distributed according to the terms of the respective contracts between Wife and ICA. It is undisputed that, at the time of Wife's death, Children were designated as the primary beneficiaries of the IRA and the TOD account. Therefore, Children are entitled to judgment as a matter of law. ¶19 We expressly overrule Deleon v. Avery, 2007 OK CIV APP 91, 170 P.3d 1043, insofar as the Court of Civil Appeals found the district court had jurisdiction to enforce the automatic temporary injunction after the divorce action abated. Deleon involved similar facts. While the dissolution of marriage action was pending, the husband changed the beneficiary of a life insurance policy from his wife to his sister. See id. ¶ 6, at 1044-45. The husband died, and the divorce action abated. Id. The wife subsequently filed a declaratory judgment action asserting that she had a right to the proceeds of the policy, because any change of beneficiary was in violation of the automatic temporary injunction and the court's temporary order. Id. ¶¶ 2, 6, at 1044-45. The Court of Civil Appeals affirmed the trial court's denial of her petition. Id. ¶¶ 1, 15, at 1044, 1046. The Court of Civil Appeals did not, however, inquire into the district court's jurisdiction to enforce the automatic temporary injunction and temporary order. Rather, it reviewed the merits of the district court's decision.13 Based on today's opinion, the trial court in Deleon was without jurisdiction to enforce the automatic temporary injunction and temporary order, and the appellate court should not have reached the merits. ¶20 We hold that the trial court lacked jurisdiction to enforce the automatic temporary injunction after the dissolution of marriage action abated. Because we hold the trial court does not have jurisdiction to enforce the automatic temporary injunction, we need not determine whether the IRA and the TOD account were marital property for purposes of property division in the dissolution of marriage action or whether Wife's acts of changing the beneficiary of the IRA and/or opening the new TOD account violated the automatic temporary injunction.14 We acknowledge that if Wife violated the automatic temporary injunction, our holding that the court is without jurisdiction to grant relief may seem inequitable--as though Wife's death wipes away any wrongdoing and there are no consequences. But, as one court so poignantly stated, "while it is regrettable that [deceased spouse] violated the automatic orders and seems to have reached beyond the grave to thwart [surviving spouse's] efforts to recover his share of her assets, this Court is unable to remedy the violation in this proceeding." A.V.B. v. D.B., 985 N.Y.S.2d 840, 845 (N.Y. Sup. Ct. 2014). ¶21 The second question to be answered by this Court is whether the trial court erred by entering a judgment as to the TOD account when Husband's petition does not reference the TOD account. The trial court granted summary judgment in favor of Husband as to both the IRA and the TOD account. Husband's Amended Petition for Declaratory Judgment seeks declaratory and injunctive relief as to Wife's IRA only. However, both parties, in their respective motions for summary judgment and responses argue they are entitled to the proceeds of the TOD account. We find it was proper for the trial court to consider the pleadings as having been amended to conform to the evidence and arguments presented on summary judgment. ¶22 Third, Children take issue with paragraphs 7 and 10 of the trial court's order: 7. Further, in her execution of the Traditional IRA Application on September 8, 2017, [Wife] indicated her marital status as divorced. That [Wife] was not divorced. . . . 10. That in her execution of the paperwork necessary to open the said non-IRA TOD account, [Wife] indicated her marital status as divorced. That [Wife] was not divorced. Children argue the trial court erred by determining Wife's intent to commit fraud. They contend that evidence of Wife's intent to commit fraud has been disputed by their affidavit from Wife's financial advisor indicating her/his office prepared the paperwork. Our review of the record on appeal reveals Husband, at most, alludes to fraud, but he has not alleged fraud and the trial court did not grant summary judgment as to a claim for fraud. In any event, whether Wife had the intent to commit fraud is immaterial to the underlying declaratory judgment action and the jurisdictional question that resolves this appeal. ¶23 Finally, Children's allegations of error that the trial court did not give effect to the revocation upon divorce statute, 15 O.S.2011 § 178(A), are misplaced. The revocation upon divorce statute does not apply in this case, because it is undisputed that at the time of Wife's death 1) no divorce had been granted and 2) Husband was not the person designated as the primary beneficiary of the IRA or the TOD account. See id.15 As such, there was not a beneficiary designation to revoke. CONCLUSION ¶24 When the dissolution of marriage action abated, the district court was deprived of its jurisdiction to enforce the automatic temporary injunction. The material facts are not in dispute, and Children are entitled to judgment as a matter of law. Accordingly, the trial court's judgment is reversed, and the cause remanded with instructions for the trial court to grant summary judgment in favor of Defendants/Appellants Dirk M. Snow and Duff M. Snow. JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS TO GRANT SUMMARY JUDGMENT IN FAVOR OF APPELLANTS. CONCUR: DARBY, C.J., KANE, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH, and KUEHN, JJ. CONCUR IN RESULT: ROWE, J. FOOTNOTES 1 Investment Centers of America, Inc. (ICA) was acquired by LPL Financial LLC in 2017. LPL moved to interplead the funds, and the trial court ordered LPL to hold the funds until ordered otherwise. LPL claims no interest in the funds. Children have dismissed their claims against ICA and LPL. 2 Whether Wife's IRA and the funds used to open the TOD account were marital or separate property for purposes of the dissolution of marriage action are hotly disputed facts but, for reasons explained in this opinion, not material to the dispositive jurisdictional issue. 3 Only if the district court has jurisdiction to enforce the automatic temporary injunction after a dissolution of marriage action abates, do we need to review whether Wife's acts of removing Husband as the primary beneficiary of her IRA and/or transferring funds to open the TOD account violated the automatic temporary injunction; whether those acts are void; and whether Husband should be reinstated as the primary beneficiary of the IRA and awarded the proceeds of the TOD account. 4 This Court has said that if there is not a justiciable controversy, the court lacks jurisdiction. The Oklahoma Constitution grants district courts "unlimited original jurisdiction of all justiciable matters . . . ." Okla. Const. art. 7, § 7. We recognize that while subject matter jurisdiction and constitutional justiciability are separate concepts, they both involve the court's constitutional power to adjudicate. See Dutton v. City of Midwest City, 2015 OK 51, n. 69, 353 P.3d 532, 547. A justiciable controversy "is (a) definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief." Application of State ex rel. Dep't of Transp., 1982 OK 36, ¶ 6, 646 P.2d 605, 609. When Wife died, the marriage dissolved. There was no longer a justiciable controversy, because the court was no longer capable of granting relief, i.e. a decree of dissolution of marriage. The district court has subject matter jurisdiction over an action for dissolution of marriage. However, similar to the justiciability analysis, when Wife's death dissolved the marriage, the district court no longer had the power to grant the relief sought. See State ex rel. Okla. Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 47, 264 P.3d 1197, 1215 (describing subject matter jurisdiction as the court's "power to proceed in a case of the character presented, or power to grant the relief sought"). 5 Courts frequently bifurcate the issues, granting a divorce but then reserving jurisdiction to decide other issues, such as property division, at another time. See Alexander v. Alexander, 2015 OK 52, ¶ 15, 357 P.3d 481, 485. This was not a bifurcated proceeding. 6 Husband did not file an application for indirect contempt citation, pursuant to 43 O.S.2011 § 111, prior to Wife's death. Whether the district court is deprived of its jurisdiction to rule on a pending application for contempt is not an issue presented in this appeal. See 43 O.S.2011 § 110(C) ("The court may reserve jurisdiction to rule on an application for a contempt citation for a violation of a temporary order or the automatic temporary injunction which is filed any time prior to the time the temporary order or injunction terminates."); Deleon v. Avery, 2007 OK CIV APP 91, ¶ 15, 170 P.3d 1043, 1046 (Buettner, J., specially concurring) (suggesting the only method for determining a penalty for an automatic temporary injunction violation is a citation for contempt filed prior to the spouse's death and a retention of jurisdiction by the trial court). 7 See, e.g., Ex Parte Thomas, 54 So. 3d 356, 361 (Ala. 2010) (holding that when the action abates, the temporary restraining order becomes a nullity, which can no longer be enforced); Milewski v. Milewski, 114 N.E.2d 419, 421 (Ill. App. Ct. 1953) (holding the court could not enforce temporary injunction in a separate maintenance suit, because death deprived the court of its power to restore the status quo); A.V.B. v. D.B., 985 N.Y.S.2d 840, 845 (N.Y. Sup. Ct. 2014) (holding that after the divorce action abates, the court cannot exercise jurisdiction to enforce prior automatic orders entered in the case); In re Estate of Knickerbocker, 912 P.2d 969, 977 (Utah 1996) (noting that the divorce proceeding and the order prohibiting the parties from "selling, encumbering or mortgaging" their marital assets died with the spouse); see also Socha v. Socha, 515 N.W.2d 337, 339 (Wis. Ct. App. 1994) (holding the court had no jurisdiction to find deceased spouse in contempt for violating a temporary order). 8 See, e.g., Northwestern Mut. Life Ins. Co. v. Hahn, 713 N.W.2d 709, 712 (Iowa Ct. App. 2006) ("Although . . . death precludes a remedy at law in the form of a contempt proceeding, it did not prevent the district court from resorting to its equity powers for a fair resolution of the issue."); In re Estate of Corrigan, 2014 MT 337, ¶ 20, 341 P.3d 623, 626 (citing Briese v. Mont. Pub. Employees' Ret. Bd., 2012 MT 192, ¶ 41, 285 P.3d 550, 559) (recognizing the district court has the discretionary authority to void a change of beneficiary when the spouse violating the statutory TRO has died "if equitable principles demanded it"); Coleman v. Olson, 551 S.W.3d 686, 697 (Tenn. 2018) ("Simply put, a trial court should have the authority to 'right a wrong' and remedy an injustice based on equitable considerations when a party violates a statutory injunction and later dies while the divorce action is pending."); Aither v. Estate of Aither, 2006 VT 111, ¶¶ 8-12, 180 Vt. 472, 476-79, 913 A.2d 376, 379-81 (holding the court's jurisdiction extends to post-abatement enforcement of pre-abatement orders); Standard Ins. Co. v. Schwalbe, 110 Wash. 2d 520, 526, 755 P.2d 802, 805-06 (Wash. 1988) (recognizing that because no remedy at law in the form of a contempt proceeding is available, the trial court can resort to its equity powers). 9 An appellate court has a duty to inquire into its own jurisdiction and the jurisdiction of the court below. See Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 12, 324 P.3d 399, 404. Notably, the jurisdictions relying on the court's equitable authority to enforce a temporary injunction in an abated divorce action do not make the duty-bound jurisdictional inquiry. Rather, they jump immediately to whether the deceased spouse violated the temporary injunction and then fashion an equitable remedy for the surviving spouse. 10 Just as there is no marriage to dissolve, there is no automatic temporary injunction to enforce. The district court lacks subject matter jurisdiction, and there is no justiciable controversy. See supra note 4. 11 Property division is tethered to the dissolution of marriage. See 43 O.S.Supp.2012 § 121(B) (requiring that marital property be divided in the decree); Nicholas v. Nicholas, 83 P.3d 214, 221 (Kan. 2004) ("[W]here there is no divorce, there is no division of property."); A.V.B., 985 N.Y.S.2d at 845 (recognizing that when one spouse dies, the matrimonial action abates, and the surviving spouse cannot obtain equitable distribution of marital assets); Thorson v. Thorson, 541 N.W.2d 692, 696 (N.D. 1996) ("In a divorce action, the equitable distribution of property is incidental to a judgment of divorce."). 12 Duff Snow opened a probate proceeding for Wife's estate on April 30, 2021. See In re Estate of Johnson, Grady County District Court, PB-2021-89. Husband was appointed Personal Representative on June 18, 2021. On May 5, 2022, the probate court entered an order of summary administration of mineral interests, automobiles, and personal property, but specifically reserved jurisdiction as to property addressed in this case. 13 The Court of Civil Appeals determined that even if changing the beneficiary violated the automatic temporary injunction, the change was harmless because the wife, as beneficiary, did not have a vested interest in the proceeds of the life insurance policy. See Deleon v. Avery, 2007 OK CIV APP 91, ¶¶ 12-15, 170 P.3d 1043, 1045-46. We offer no opinion as to the correctness of this part of the appellate court's analysis in Deleon. 14 We note that the automatic temporary injunction statute specifically restrains the parties from "changing or in any manner altering the beneficiary designation on any life insurance policies on the life of either party or any of their children . . . ." 43 O.S. § 110(A)(1)(b)(4) (emphasis added). There is no equivalent statutory provision for retirement accounts. Rather, Husband argues changing the beneficiary of the IRA violated 43 O.S. § 110(A)(1)(a) of the automatic temporary injunction statute, which restrains "the parties from transferring, encumbering, concealing, or in any way disposing of, without the written consent of the other party or an order of the court, any marital property . . . ." Relying on the Oklahoma Uniform TOD Security Registration Act, Children argue changing the beneficiary designation on an IRA does not transfer, encumber, conceal, or any way dispose of the property: The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary. The designation of a TOD beneficiary on a registration in beneficiary form shall be subject to the provisions of Section 178 of Title 15 of the Oklahoma Statutes. 71 O.S.Supp.2020 § 907; see In re Estate of Westfall, 942 P.2d 1227, 1230 (Colo. App. 1996) (finding that changing POD beneficiary altered surviving spouse's rights as heir but did not "encumber" any marital property). Furthermore, nothing in today's opinion prevents the district court from issuing temporary orders that prohibit the parties from changing the beneficiaries of retirement accounts while the divorce is pending. See 43 O.S. § 110(A)(7) ("Nothing in this subsection shall preclude either party from applying to the court for further temporary orders, pursuant to this section, an expanded automatic temporary injunction, or modification or revocation thereto."). In this case, the Agreed Temporary Order did not contain a provision specifically prohibiting Wife from changing the beneficiary of her IRA. 15 The revocation upon divorce statute provides, in part: If, after entering into a written contract in which a beneficiary is designated or provision is made for the payment of any death benefit (including life insurance contracts, annuities, retirement arrangements, compensation agreements, depository agreements, security registrations, and other contracts designating a beneficiary of any right, property, or money in the form of a death benefit), the party to the contract with the power to designate the beneficiary or to make provision for payment of any death benefit dies after being divorced from the person designated as the beneficiary or named to receive such death benefit, all provisions in the contract in favor of the decedent's former spouse are thereby revoked. . . . 15 O.S.2011 § 178(A) (emphasis added). Nor does this Court's recent decision Ghoussoub v. Yammine, 2022 OK 64, __ P.3d __, apply to these facts.

ce185303-5eec-4d63-8856-4e8fe6086b75

Hammer v. Oklahoma

oklahoma

Oklahoma Supreme Court

HAMMER v. STATE2022 OK 80Case Number: 119,429Decided: 10/11/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN THE MATTER OF B. H. AND J. H., MINOR CHILDREN ANTHONY HAMMER, Respondent/Appellant, v. STATE OF OKLAHOMA, Petitioner/Appellee. ON APPEAL FROM THE DISTRICT COURT OF MCINTOSH COUNTY, STATE OF OKLAHOMA HONORABLE BRENDON BRIDGES, ASSOCIATE DISTRICT JUDGE ¶0 On review of an order denying Father's motion to vacate a judgment for lack of jurisdiction, we affirm the district court's denial. We hold there is no abuse of discretion in denying a motion to vacate an order terminating parental rights that was finally adjudicated when nothing on the face of the judgment roll demonstrates a lack of jurisdiction. Father stipulated to the petition which listed the children's street address as within McIntosh County. The district court implicitly found Children were not residents or domiciliaries of a reservation. At no point in the original proceedings did Father or the tribe allege otherwise. No direct appeal was filed from the original order. Instead, Father brought a claim to vacate more than a year after the judgment terminating his parental rights became final. A motion to vacate is not a substitute for a timely appeal. A judgment will only be vacated as void if the lack of jurisdiction affirmatively appears on the face of the judgment roll. Because Father failed to demonstrate the judgment is void, the order of the district court denying Father's motion to vacate must be affirmed. ORDER OF THE DISTRICT COURT IS AFFIRMED. Anthony Hammer, Appellant, pro se. OPINION Darby, C.J.: ¶1 Pro Se respondent/appellant, Anthony Hammer (Father), is a member of the Cherokee Nation. In a collateral attack on an already final order, Appellant invoked McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452, 207 L. Ed. 2d 985 (2020); the United States' 1866 treaty with the Cherokee, Treaty with the Cherokee, U.S.-Cherokee Nation, July 19, 1866, 14 Stat. 799; and the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., and moved to vacate the Oklahoma district court's order terminating Father's parental rights to his children, B.H. and J.H (Indian Children or Children). Father argued the order is void--that the district court never acquired jurisdiction because Children were domiciled or resided in the Muscogee (Creek) Nation's reservation. ¶2 Foremost, this appeal involves the application of Oklahoma's Civil Procedure Code for when a district court may vacate a judgment as void. See 12 O.S. 2011, § 1038.1 The sole issue is whether the district court abused its discretion in denying Father's motion to vacate.2 Because Father failed to affirmatively show the district court lacked jurisdiction of the termination proceeding, we affirm. Scoufos v. Fuller, 1954 OK 363, ¶ 20, 280 P.2d 720, 723; see also Thomason v. Thompson, 1926 OK 865, ¶ 3, 253 P. 99, 101 ("All presumptions are in favor of the validity of the judgments in a court of general jurisdiction. A judgment is void on its face when it so appear[s] by an inspection of the judgment roll, but would not be held void on its face unless the record thereof affirmatively shows the court was without jurisdiction.") (citations omitted). FACTS AND PROCEDURAL HISTORY ¶3 On December 11, 2017, the Department of Human Services (DHS) through the McIntosh County District Attorney's Office filed an application to place B.H. (age 6) and J.H. (age 9) into emergency custody citing an imminent safety threat. A DHS worker's affidavit attached to the application reported Children's Cherokee tribal affiliation. The affidavit also listed Children's address prior to removal. The listed address is within the boundaries of McIntosh County, Oklahoma. ¶4 After the emergency custody hearing, the district court found ICWA applied, that the Cherokee Nation and Bureau of Indian Affairs (BIA) had been notified, and that reasonable and/or active efforts were made to prevent the breakup of Indian Children's family. The State filed a petition seeking to adjudicate Children deprived. The petition asserted the State's exercise of jurisdiction was proper pursuant to the Uniform Child Custody Jurisdiction Enforcement Act, 43 O.S. 2011, §§ 551-101 et seq., and 10A O.S. 2011, § 2-2-102. ¶5 Father did not challenge the district court's exercise of jurisdiction, and voluntarily stipulated to the petition. The court initially approved a reunification permanency plan; that effort, however, failed and the court approved adoption as the new plan. After the state filed a termination petition, Father voluntarily relinquished his parental rights. On January 24, 2020, the district court entered the order terminating Father's rights. That order was a final judgment from which Father could appeal. 10A O.S. 2011, § 1-5-103(A). Father did not appeal. ¶6 Months later, on July 9, 2020, the United States Supreme Court decided McGirt, which held Congress never disestablished the Creek Nation's historical reservation. McGirt, 140 S. Ct. at 2468. As a consequence, a significant portion of eastern Oklahoma was recognized as "Indian country." Id. at 2459-60, 2468. On January 26, 2021, a year after the order was final, Father filed a motion to vacate. He argued for the first time that the McIntosh County district court never acquired jurisdiction over the proceedings, and as such, the order was void ab initio. Father claimed that only an Indian tribe could exercise jurisdiction over the termination proceedings under ICWA because Children resided or were domiciled within the historic boundaries of the Creek reservation.3 The district court denied Father's motion as untimely and without merit.4 Father appeals the denial of his motion to vacate the judgment. We retained this appeal. STANDARD OF REVIEW ¶7 The district court's decision denying Father's motion to vacate comes to this Court "clothed with a presumption of correctness. Every fact not disputed by the record must be regarded as supportive of the trial court's ruling." Willis v. Sequoyah House, Inc., 2008 OK 87, ¶ 15, 194 P.3d 1285, 1290 (footnotes omitted). Father, as appellant, bears total responsibility for including in the appellate record all materials necessary to support his claim for corrective relief. Davidson v. Gregory, 1989 OK 87, ¶¶ 11-12, 780 P.2d 679, 682; see also Hamid v. Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496, 497 ("Legal error may not be presumed in an appellate court from a silent record. The opposite is true. Absent a record showing otherwise, this court presumes that the trial court did not err."). ¶8 The appeal does not concern the correctness of the original order, but the correctness of the district court's response to Father's motion to vacate. Yery v. Yery, 1981 OK 46, ¶ 14, 629 P.2d 357, 363. On appeal we review the trial court's denial of a motion to vacate for abuse of discretion. Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. When a party files a motion to vacate, the trial court "must first decide whether a sufficient ground for granting the application exists. . . ." Poff v. Lockridge, 1908 OK 209, ¶ 10, 98 P. 427, 429 quoting 15 William M. McKinney, The Encyclopedia of Pleading and Practice 287. If such sufficient ground exists for modifying or vacating a judgment, then the trial court is to "decide upon the validity of the defense offered." Id. ¶ 9, 98 P. at 429. An application for the opening or vacation of a judgment is addressed to the sound legal discretion of the court, and while his disposition of the application may be reviewed on appeal, it will not be reversed, unless it clearly appears that this discretion has been abused . . . . The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat the ends of substantial justice. In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubtful whether the excuse offered is sufficient or not, or whether the defense set up is within or without merit in foro legis, when examined under those rules of law by which judges are guided to a conclusion, the judgment of the court below will not be disturbed. Id. ¶¶ 16-18 (emphasis added) (citations and quotation marks omitted). ANALYSIS ¶9 A district court's power to vacate or otherwise modify a final judgment or order is generally a matter of procedure and is limited. 12 O.S. 2011, §§ 1031-1038.5 Father cited no specific ground authorizing the court to vacate the termination order. See e.g., 12 O.S. 2011, § 1031.6 Instead, Father referred to ICWA and McGirt, and then generally claimed the district court lacked jurisdiction. ¶10 In the original termination case, an Oklahoma state district court, not a tribal court, decided the matter. Implicit in the district court's exercise of jurisdiction was its finding that Children were not domiciled on a reservation. At no point in time did any interested party dispute the Children's status as Indian children or where they lived. Likewise no party made a direct appeal from the original order alleging as error any of the district court's findings or the court's exercise of jurisdiction. Father was represented by counsel and the tribes were involved in the district court proceedings below. It was only after McGirt -- and years after the initial petition was filed listing their specific addresses -- that Father claimed Children actually resided or were domiciled on a reservation.7 ¶11 Father argues this would constitute a ground to vacate the final order because such a finding would necessarily mean the state court lacked jurisdiction over the termination proceedings. Father did not refer to any specific ground in his motion, he only claimed that the district court lacked jurisdiction based on his bare assertions that Children are domiciled within the Creek reservation. ¶12 But a district court's power to vacate an order is a matter of procedure. It is only authorized to vacate its order as void for lack of jurisdiction if such defect is affirmatively shown within the framework of the Oklahoma Civil Procedure Code. 12 O.S. 2011, § 1031(3); § 1038. A void judgment may be vacated at any time. 12 O.S. 2011, § 1038.8 In order for a judgment to be void, it must be demonstrably void on the face of the judgment roll;9 no extrinsic evidence is admissible to show the judgment is void. Scoufos v. Fuller, 1954 OK 363, ¶ 17, 280 P.2d 720, 723. ¶13 The record in this appeal includes the entirety of the court clerk's file and no more; it includes all the filings but no additional evidentiary materials. Father cannot demonstrate the original termination order is void. Further, Father fails to identify how the McIntosh County court's exercise of jurisdiction was deficient and how such defect in jurisdiction is obvious from the record. CONCLUSION ¶14 We decide Father's appeal from the denial of a motion to vacate on procedural grounds. 12 O.S. 2011, § 1038. We hold the district court did not abuse its discretion in refusing to vacate a facially valid judgment. Father failed to allege and prove any ground sufficient to vacate a final judgment. See 12 O.S. 2011, § 1031. Here, he only argued that the district court lacked jurisdiction. While a judgment rendered without jurisdiction is void and subject to vacation at any time, the defect in jurisdiction must be affirmatively shown on the face of the judgment roll. Scoufos v. Fuller, 1954 OK 363, ¶¶ 17-18, 20, 280 P.2d 720, 723. Father has not and cannot show the original termination order is void. The order of the district court is affirmed. ORDER OF THE DISTRICT COURT IS AFFIRMED. Darby, C.J., Kane, V.C.J., (by separate writing); and Kauger, Winchester, Edmondson, and Rowe, JJ., concur. Combs (by separate writing), Gurich, and Kuehn, JJ., concur in result. FOOTNOTES 1 Section 1038 provides: Proceedings to vacate or modify a judgment, decree or order, for the causes mentioned in paragraphs 4, 5 and 7 of Section 1031 of this title must be commenced within two (2) years after the filing of the judgment, decree or order, unless the party entitled thereto be an infant, or a person of unsound mind and then within two (2) years after removal of such disability. Proceedings for the causes mentioned in paragraphs 3 and 6 of Section 1031 of this title, shall be within three (3) years, and in paragraph 9 of Section 1031 of this title, within one (1) year after the defendant has notice of the judgment, decree or order. A void judgment, decree or order may be vacated at any time, on motion of a party, or any person affected thereby. 2 Father did not list, allege or prove any ground to vacate pursuant to 12 O.S. 2011, § 1031. After a judgment is final, a court loses jurisdiction to vacate the same unless there is substantial compliance with 12 O.S. 2011, § 1031. Fowler v. Goldfeder, 1966 OK 156, ¶ 6, 418 P.2d 317, 318-19. "[A] valid defense or cause of action is a condition precedent to the vacation of a judgment upon any grounds, except the lack of jurisdiction. . . [a]nd the court must adjudge that such defense or cause of action is prima facie valid. Id. ¶ 10, 418 P.2d at 319 (citations omitted). 3 Father's motion to vacate claimed the Cherokee Nation had exclusive jurisdiction over civil disputes involving its members per the 1866 Treaty. His reply to the Assistant District Attorney's answer claimed that Children were domiciled in the Creek reservation and that either the Cherokee Nation or Creek Nation had jurisdiction over the proceedings. 4 At the district court, Father bore the burden of proof to overcome the presumption that the original termination order was correct and proceedings were regular. Davidson v. Gregory, 1989 OK 87, ¶ 11, 780 P.2d 679, 682. In a motion to vacate, the movant must prove by clear, cogent and convincing evidence that the original judgment is subject to vacation. Id. ¶11 n. 16, 780 P.2d at 682 n.16. The district court's denial of the motion to vacate provided: The Court finds the Petitioners [sic] argument is without merit. First, the Petitioner fails to timely assert his claim. In addition, the substance of Petitioner's claim is without merit. As McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) states 'the Legislature wields significant constitutional authority when it comes to tribal relations.' Id. at 2462. McGirt deals with the intention, or lack thereof, of Congress to have disestablished the historical boundaries of the Creek Nation as it relates to claims brought under the Major Crimes Act (MCA), 18 U.S.C.A. § 1153. In the present matter, the U.S. Congress clearly expresses an intent for both State and Tribal involvement, subject to congressional legislation, in the juvenile proceedings which led to the Petitioner relinquishing his parental rights. See Indian Child Welfare Act, 25 U.S.C.A. §1901 et al. ('ICWA'). The Petitioner asserts no violation of ICWA [and] this Court finds none to exist. For the above reasons this Court DENIES the Petitioner's Motion to Vacate. Furthermore, the Petitioner's request for evidentiary hearing is DENIED. 5 12 O.S. 2011, § 1031.1 is the statutory reconfirmation of the common law concept that district court's retain plenary control within their term. Schepp v. Hess, 1989 OK 28, ¶¶ 7-9, 770 P.2d 34, 37-38. 6 Section 1031 provides: The district court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter: 1. By granting a new trial for the cause, within the time and in the manner prescribed in Sections 651 through 655 of this title; 2. As authorized in subsection C of Section 2004 of this title where the defendant had no actual notice of the pendency of the action at the time of the filing of the judgment or order; 3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order; 4. For fraud, practiced by the successful party, in obtaining a judgment or order; 5. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings; 6. For the death of one of the parties before the judgment in the action; 7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending; 8. For errors in a judgment, shown by an infant in twelve (12) months after arriving at full age, as prescribed in Section 700 of this title; or 9. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment. 7 The Petition was filed on December 14, 2017, in the district court for McIntosh County, State of Oklahoma. It reported ICWA was relevant, recited that jurisdiction was proper, and listed the addresses of Mother and Father. 8 A judgment void on the face of the judgment roll may be vacated at any time. 12 O.S. 2011, § 1038. See also Pettis v. Johnston, 1920 OK 224, ¶ 22, 190 P. 681, 689 ("A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its want of vitality, is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant. . . . [pursuant to §1038 and its predecessors] a void judgment may be vacated at any time on motion of a party, or any person affected thereby, a judgment void upon its face may be vacated at any time by the court rendering such judgment . . . [and] the court . . . is not hampered by a limitation of time. A judgment is void on its face when it so appears by an inspection of the judgment roll, but will not be held void on its face unless the record thereof affirmatively shows the court was without jurisdiction to render it.")(citations omitted) (quotation marks omitted). 9 "The judgment roll, which is synonymous with record proper, consists of the petition, the process, the return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court." Mayhue v. Mayhue, 1985 OK 68, ¶ 8 n. 17, 706 P.2d 890, 895 (citations omitted)( internal quotations omitted). KANE, V.C.J., concurring specially: ¶1 I concur with the majority's holding that the trial court did not abuse its discretion by denying Father's motion to vacate, as well as its reasoning that no jurisdictional defect is apparent from the face of the judgment roll. I write separately to more specifically analyze whether subject matter jurisdiction or personal jurisdiction was lacking in this case. ¶2 Father argues the judgment terminating his parental rights should be vacated for "lack of jurisdiction." He does not indicate whether he is challenging the State district court's exercise of subject matter jurisdiction or personal jurisdiction. The majority opinion and the opinion concurring in result also use the general term "jurisdiction." Neither opinion indicates whether it finds no facial defect as to subject matter jurisdiction, personal jurisdiction, or both. ¶3 It is imperative that the courts (and litigants) differentiate between personal jurisdiction, subject matter jurisdiction, and other procedural limitations when a final judgment is being collaterally attacked. Why? Because personal jurisdiction and other errors are waivable; subject matter jurisdiction is not. ¶4 A void judgment may be vacated at any time. See 12 O.S.2021 § 1038. A judgment will be deemed void only when the face of the judgment roll reveals that one of three jurisdictional elements is missing: jurisdiction over the parties, jurisdiction over the subject matter, or power to pronounce the particular decision that was entered. See House v. Town of Dickson, 2007 OK 57, ¶ 11, 193 P.3d 964, 968. ¶5 A primer on two fundamental concepts of civil (and criminal) procedure--personal jurisdiction and subject matter jurisdiction--is helpful. Personal jurisdiction is the requirement that the court has power over the parties. See Conoco, Inc. v. Agrico Chem. Co., 2004 OK 83, ¶ 16, 115 P.3d 829, 834 ("In personam jurisdiction is the power to deal with the person of the defendant and to render a binding judgment against the defendant."). Personal jurisdiction is acquired by service of process or by voluntarily appearing before the court. Id. The parties may consent to or waive the personal jurisdiction requirement. See 12 O.S.2021 § 2012(F)(1); Powers v. Dist. Court of Tulsa Cty., 2009 OK 91, ¶ 7, 227 P.3d 1060, 1068. Participating in the proceedings without preserving an objection to personal jurisdiction is usually construed as a general appearance and a waiver of any objection to personal jurisdiction. See State ex rel. Okla. Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 43, 264 P.3d 1197, 1214. The Oklahoma Children's Code contains a personal jurisdiction statute for juvenile deprived proceedings: Upon the filing of a petition, the assumption of the custody of a child, or issuance of an emergency custody order pursuant to the provisions of the Oklahoma Children's Code, the district court shall obtain jurisdiction over any child who is or is alleged to be deprived. Jurisdiction shall also be obtained over any parent, legal guardian, or custodian of and any other person living in the home of such child who appears in court or has been properly served with a summons pursuant to Section 1-4-304 of this title. 10A O.S.2021 § 1-4-101(A)(1). ¶6 An inspection of the judgment roll reveals that Father was properly served with the summons and that he appeared (in custody) and participated in the proceedings to adjudicate the children deprived and terminate his parental rights.1 Father thereby waived any challenge to personal jurisdiction. The judgment is not void for lack of personal jurisdiction. ¶7 Subject matter jurisdiction is the requirement that the court has the power to adjudicate the type of controversy. See In re A.N.O., 2004 OK 33, ¶ 9, 91 P.3d 646, 649 ("Subject matter jurisdiction is essential. It is the power and authority of a court to hear and determine causes of the kind in question."). The State district courts' subject matter jurisdiction is derived from the Oklahoma Constitution. See Okla. Const. art. 7, § 7; Jernigan v. Jernigan, 2006 OK 22, ¶ 16, 138 P.3d 539, 545. The Oklahoma Constitution grants the district courts expansive subject matter jurisdiction. "The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article . . . ." Okla. Const. art. 7, § 7 (emphasis added). Oklahoma district courts are courts of general jurisdiction, meaning they have the power to adjudicate nearly every type of controversy, civil and criminal, that arises within the State's territorial boundaries.2 Subject matter jurisdiction cannot be waived or conferred upon the court by the parties' consent, and it may be challenged at any time. See A.N.O., 2004 OK 33, ¶ 9, 91 P.3d at 649. ¶8 The judgment roll evidences the types of controversies presented in this case: the adjudication of a child's deprived status, child custody, and the State's petition to terminate parental rights. The general subject matter jurisdiction granted to the district courts by the Oklahoma Constitution includes the power and authority to adjudicate these types of controversies. The Oklahoma district court had subject matter jurisdiction over this child custody proceeding. ¶9 Two or more courts may have jurisdiction over the same type of controversy or subject matter. This is referred to as concurrent jurisdiction. For example, Oklahoma district court may share concurrent jurisdiction with another state, federal, or tribal court. When two courts share concurrent jurisdiction, either court can exercise jurisdiction. However, there may be procedural limitations that determine which court should exercise jurisdiction or which court has priority to exercise jurisdiction. See e.g., Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989) (recognizing 25 U.S.C. § 1911(b) "creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation . . . ."); see In re Teagan K.-O., 242 A.3d 59, 78-83 (2020) (holding the UCCJEA does not confer subject matter jurisdiction on the courts but instead determines which state is permitted to exercise its existing subject matter jurisdiction when there is concurrent jurisdiction). ¶10 Father's unspecified claim of "lack of jurisdiction" invokes 25 U.S.C. § 1911(a) of the Indian Child Welfare Act (ICWA), which provides that "an Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law." 25 U.S.C. § 1911(a). Father argues that because the Children are Indian and they were domiciled within the Creek Reservation, either the Cherokee Nation or the Muscogee (Creek) Nation has exclusive jurisdiction over the proceedings. ¶11 Section 1911(a) of ICWA, read in a vacuum, "establishes exclusive [subject matter] jurisdiction in the tribal courts for proceedings concerning an Indian child 'who resides or is domiciled within the reservation of such tribe,' as well as for wards of tribal courts regardless of domicile." Holyfield, 490 U.S. at 36 (quoting 25 U.S.C. § 1911(a)). Absent an intergovernmental agreement pursuant to 25 U.S.C. § 1919(a), a tribal court could be argued to have exclusive jurisdiction over this child custody proceeding.3 However, as Justice Combs notes, the State and Tribes agreed to share concurrent jurisdiction over child custody proceedings involving an Indian child who resides or is domiciled within the reservation. More specifically, the State and Tribes agreed to share concurrent subject matter jurisdiction. See In re Parental Rights as to S.M.M.D., 272 P.3d 126, 127, 131-33 (Nev. 2012) (holding the State district court did not lack subject matter jurisdiction because the Tribe and the State entered into an agreement which provided for concurrent jurisdiction under 25 U.S.C. § 1919(a)). Therefore, the judgment is not void for lack of subject matter jurisdiction.4 ¶12 Any alleged error based on the State district court's failure to transfer the case to the tribal court pursuant to 25 U.S.C. § 1911(b) was waived when the transfer was not requested by Father in the proceeding below. Section 1911(b) is a procedural limitation that prescribes circumstances under which the State district court should yield to the tribal court's exercise of concurrent subject matter jurisdiction, but it does not remove the State district court's constitutionally-conferred subject matter jurisdiction to adjudicate child custody. ¶13 The holding in McGirt was that the Creek Reservation was never disestablished. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2468 (2020). The effect of that decision is that now a significant portion of eastern Oklahoma is considered Indian country for purposes of the Major Crimes Act (MCA), 18 U.S.C. §§ 1151, 1153. Several federal and state laws borrow the MCA's definition of Indian country,5 but my analysis is limited to 25 U.S.C. § 1911(a). The effect of McGirt upon other statutes that borrow the definition of Indian country from the MCA is not before us. Other collateral attacks on final judgments based on this new understanding of what is a reservation in Oklahoma may raise waivable issues or other procedural bars to relief not presented herein. FOOTNOTES 1 Father also stipulated to the State's petition and the district court's exercise of jurisdiction pursuant to 10A O.S.Supp.2013 § 2-2-102 and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 43 O.S.2011 §§ 551-101 to 551-402. However, 10A O.S. § 2-2-102 of the Oklahoma Juvenile Code is the personal jurisdiction statute for juvenile delinquency proceedings, not juvenile deprived proceedings. The personal jurisdictional statute applicable to juvenile deprived proceedings is 10A O.S. § 1-4-101. 2 The Oklahoma Constitution and Oklahoma Statutes also establish courts with limited subject matter jurisdiction, e.g. Workers' Compensation Court, Court of Bank Review, Court of Tax Review, and Boards, Agencies and Commissions. See Okla. Const. art. 7, § 1. Only by giving these courts exclusive jurisdiction over certain types of controversies, has the district court's subject matter jurisdiction over those limited matters been withdrawn. 3 Children are members of the Cherokee Nation. Father alleges Children were domiciled or resided within the Muscogee (Creek) Nation's reservation. This case leaves unresolved whether 25 U.S.C. § 1911(a) and (b) contemplates that the tribe of the child and the tribe of the reservation within which the child is domiciled or resides are the same. 4 Nor is it apparent from the face of the judgment roll that the State district court was without power to pronounce the particular decision that was entered. The judgment roll reveals that Father voluntarily relinquished his parental rights after which the district court entered a judgment terminating his parental rights. 5 ICWA is one such statute. ICWA provides: "Reservation" means Indian country as defined in section 1151 of Title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation . . . . 25 U.S.C. § 1903(10) (emphasis added). COMBS, J., with whom GURICH and KUEHN, JJ., join, concurring in result: ¶1 I concur in the majority opinion's result affirming the trial court's denial of Father's motion to vacate the judgment terminating his parental rights, but write separately to explain the basis upon which I would affirm. ¶2 The majority opinion affirms denial of Father's motion to vacate on purely procedural grounds, finding that he "has not and cannot show the original termination order is void" for lack of jurisdiction based on anything within the judgment roll. See Majority Op. ¶¶ 11, 14. The majority holds that Father "has not" carried his burden because he came with only "his bare assertions that Children are domiciled within the Creek reservation." See id. ¶ 11. The majority holds Father "cannot" carry his burden because voidness of the judgment cannot be demonstrated using extrinsic evidence. The majority believes Father needs extrinsic evidence to demonstrate that the Children's address--which is contained in the judgment roll--is located on a tribal reservation. See id. ¶¶ 10, 12, 14 & n.7. Essentially, the majority faults Father for failing to predict the future outcome in McGirt v. Oklahoma, 591 U.S. ---, 140 S. Ct. 2542 (2020). ¶3 Instead of focusing on a procedural issue, the majority should have analyzed the jurisdictional argument that Father's appeal raises. Father argues on appeal that, under § 1911(a) of ICWA, the tribal court would "have jurisdiction exclusive as to any State" over his proceeding for termination of parental rights because "the minor children were domiciled at [an address in] Eufaula, OK, which [according to McGirt] lies within the Muscogee Creek Nation." Appellant's Pet. in Error ex. C; Appellant's Br. 1 (quoting 25 U.S.C. § 1911(a)). Thus, Father squarely raises the legal issue of whether ICWA deprives the state court of jurisdiction over these child custody proceedings such that its judgments should be vacated. Had the majority addressed this legal issue, it would have reached the same result. ¶4 To resolve the issue Father raises, this Court must consider the whole of ICWA. See In re I.T.S., 2021 OK 38, ¶ 14, 490 P.3d 127, 132 ("We must consider the statute as a whole, not just individual words or provisions. These same rules apply when interpreting ICWA." (citing In re M.S., 2010 OK 46, ¶¶ 13--14, 237 P.3d 161, 165--66)). Section 1911(a) and (b) presents the default rule for determining whether the state courts or tribal courts have jurisdiction over a particular "child custody proceeding" or "proceeding for . . . termination of parental rights": § 1911. Indian tribe jurisdiction over Indian child custody proceedings (a) Exclusive jurisdiction An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. (b) Transfer of proceedings; declination by tribal court In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe. 25 U.S.C. § 1911(a)--(b) (2012). But we cannot consider § 1911 alone. Section 1919 of ICWA provides a mechanism for avoiding § 1911's default rule: § 1919. Agreements between States and Indian tribes (a) Subject coverage States and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including . . . agreements which provide for concurrent jurisdiction between States and Indian tribes. Id. § 1919(a). To the extent such treaties or "agreements" exist, they are incorporated into the existing body of law that governs this appeal. ¶5 Here, there were such agreements between Oklahoma and each of the two involved tribes, i.e., the Muscogee (Creek) Nation and the Cherokee Nation. Shortly after the U.S. Supreme Court handed down McGirt in July of 2020 and before Father sought to vacate the district court's judgment in January of 2021, Oklahoma and these two tribes executed intergovernmental agreements regarding ICWA jurisdiction. See Intergovernmental Agreement Between the State of Oklahoma and the Muscogee (Creek) Nation Regarding Jurisdiction over Indian Children within the Nation's Reservation, Okla.-Muscogee (Creek) Nation, Aug. 4, 2020, Okla. Sec'y of State Doc. No. 50527, https://www.sos.ok.gov/documents/filelog/93632.pdf; Intergovernmental Agreement Between the State of Oklahoma and the Cherokee Nation Regarding Jurisdiction over Indian Children within the Nation's Reservation, Okla.-Cherokee Nation, Sept. 1, 2020, Okla. Sec'y of State Doc. No. 50566, https://www.sos.ok.gov/documents/filelog/93672.pdf. These intergovernmental agreements received post hoc endorsements from the Oklahoma Legislature via its amendment of the Oklahoma Indian Child Welfare Act in April of 2021. See Act of Apr. 23, 2021, ch. 186, § 1, 2021 Okla. Sess. Laws Serv. 595, 595--96 (codified at 10 O.S.2021, ch. 1B, § 40.7, https://govt.westlaw.com/okjc/) ("The State of Oklahoma hereby ratifies all agreements in conformity with the Federal Indian Child Welfare Act executed prior to the enactment of this act, and any such agreement shall be enforceable in any case filed or pending at the time that an agreement vesting concurrent jurisdiction is entered into between the state and an Indian tribe."). The stated purpose of both intergovernmental agreements is "to further streamline the jurisdictional provisions put forth in the Indian Child Welfare Act and create concurrent jurisdiction on the reservation of the [respective] Nation with the State of Oklahoma and its political subdivisions." Intergovernmental Agreement Between the State of Oklahoma and the Muscogee (Creek) Nation, supra, § I, at 1 (emphasis added); Intergovernmental Agreement Between the State of Oklahoma and the Cherokee Nation, supra, § I, at 1 (emphasis added). Along those lines, both intergovernmental agreements provide: Within the reservation boundaries of the Tribe, the State of Oklahoma and the Tribe shall share concurrent jurisdiction over any Indian child domiciled within the reservation, except as follows: (1) The Tribe shall retain exclusive jurisdiction over any child custody proceeding involving an Indian child domiciled or located on: (A) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same; or (B) land held in trust by the United States on behalf of an individual Indian or the Tribe; or (C) land owned in fee by the Tribe, if the Tribe-- (i) acquired fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which the Tribe was a party; and (ii) never allotted land to a citizen or member of the Tribe. (2) Where an Indian child is a ward of the Tribe's court, the Tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. Intergovernmental Agreement Between the State of Oklahoma and the Muscogee (Creek) Nation, supra, § IV, at 2--3 (emphasis added); Intergovernmental Agreement Between the State of Oklahoma and the Cherokee Nation, supra, § IV, at 2--3 (emphasis added). Essentially, this provision restores the definition of "reservation" or "Indian Country" to its pre-McGirt meaning. Both intergovernmental agreements also contain a provision addressing "RETROACTIVITY," stating in relevant part that "[t]he Tribe hereby ratifies and agrees to extend full faith and credit to all child custody determinations rendered in any state court prior to this Agreement, except those child custody determinations involving an Indian child domiciled or located on lands identified in Section IV(1), and consent [sic] not to petition to invalidate any such action under 25 U.S.C. § 1914 on the basis that such action violated § 1911(a)." Intergovernmental Agreement Between the State of Oklahoma and the Muscogee (Creek) Nation, supra, § X, at 6; Intergovernmental Agreement Between the State of Oklahoma and the Cherokee Nation, supra, § X, at 6. Thus, both tribes have agreed to continue business as usual despite McGirt and not to use McGirt to disrupt any finalized proceedings. ¶6 The district court's finding that there has been no violation of ICWA is correct. The tribes' execution of the intergovernmental agreements restored the pre-McGirt interpretation of § 1911(a), and Father failed to request transfer of jurisdiction under § 1911(b) during the child custody proceedings, see Majority Op. ¶ 5 ("Father did not challenge the district court's exercise of jurisdiction, and voluntarily stipulated to the petition [seeking to adjudicate the children as deprived] . . . . [and] voluntarily relinquished his parental rights."). Thus, the district court did not abuse its discretion in denying Father's motion to vacate, and its order denying Father's motion to vacate should be affirmed.

bcdc6593-074a-49d9-8da9-3153a05e7f8a

Western Heights Independent Sch. Dist. v. Oklahoma

oklahoma

Oklahoma Supreme Court

WESTERN HEIGHTS INDEPENDENT SCHOOL DISTRICT v. STATE2022 OK 79Case Number: 120034Decided: 10/04/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. WESTERN HEIGHTS INDEPENDENT SCHOOL DISTRICT NO. I-41 OF OKLAHOMA COUNTY and MANNIX BARNES, Superintendent, Petitioners/Appellants, v. THE STATE OF OKLAHOMA, ex rel., OKLAHOMA STATE DEPARTMENT OF EDUCATION, OKLAHOMA STATE BOARD OF EDUCATION, and JOY HOFMEISTER, State Superintendent of Public Instruction, Respondents/Appellees. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 Petitioners, school district and superintendent of the school district, sought a declaratory judgment, temporary restraining order, and preliminary injunction. The Honorable Aletia Haynes Timmons, District Judge for the District Court of Oklahoma County, denied the requests for temporary restraining order and preliminary injunction. Petitioners filed an interlocutory appeal and motion to retain the appeal in the Supreme Court for appellate review. The Court granted the motion to retain. We hold the Superintendent failed to show a likelihood of success on the merits of his claim that a due process violation occurred, or a likelihood of success on the merits of his claim that his administrative remedy was inadequate, and failed to show he was entitled to a preliminary injunction. We hold the School District failed to show a likelihood of success on the merits on a claim the State Board lacked authority to place the school district on probation with a condition requiring an interim superintendent, and failed to show a likelihood of success on the merits of a claim the school district was entitled to an administrative individual proceeding prior to the school district being placed on probation, and school district failed to show it was entitled to a preliminary injunction. DISTRICT COURT ORDER AFFIRMED Jerry L. Colclazier, Colclazier & Associates, Seminole, Oklahoma, for Petitioners/Appellants.1 Brad S. Clark, Lori Murphy, Telana McCullough, and Desiree Singer, Oklahoma City, Oklahoma, for Respondents/Appellees. EDMONDSON, J. ¶1 Petitioners, a school district and the school district's superintendent, brought an action in a District Court to stop the Oklahoma State School Board from taking actions against the school district in the meetings of the Board. The Board continued with its meetings and petitioners filed requests for a restraining order, preliminary injunction, and declaratory judgment to prevent further State Board actions until both the school district and its superintendent obtained administrative individual proceedings. The District Court denied the petitioners' requests and they appealed. The State Board continued with its meetings, placed the school district on probation and required an interim superintendent as a condition of probation. We affirm the District Court. I. Controversy in District Court ¶2 The Oklahoma State Board of Education wanted Western Heights Independent School District No. I-41 to appear at the Board's meeting on April 9, 2021. No one representing the District appeared at the April 9th meeting, and during the meeting the Board "adjusted the District's accreditation status to 'Accredited with Probation.'" Then on April 22, 2021, the District and its Superintendent, Mannix Barnes, filed a petition for a declaratory judgment in the District Court of Oklahoma County. Petitioners sought both declaratory and injunctive relief against the Board, the Oklahoma State Department of Education (OSDE), and the State Superintendent of Public Instruction. ¶3 Petitioners stated they "are entitled to judicial review of all the Respondents' decisions, pursuant to 75 O.S.§ 318" of the Administrative Procedures Act. They alleged they "are entitled to both a judicial declaration and injunctive relief as provided in Title 25 O.S. § 314 [of the Oklahoma Open Meeting Act] to enjoin and restrain the Board from 'lowering' Western Heights accreditation to probation." They sought a declaratory judgment to determine the proper procedures to be used by respondents. ¶4 Petitioners sought an injunction to prevent the respondents "from lowering or revoking the District's accreditation status until such time as the Respondents promulgate a fair procedure and policy for doing so." They also sought a judicial declaration that in administrative proceedings before the OSDE the defendants "violated the District's right of a fair and impartial adjudication, and have violated the due process rights of the Superintendent, by reaching decisions of great importance without standards, procedures and policies, and such decisions should be vacated and held for naught." ¶5 On June 24, 2021, the State Board of Education issued an "Emergency Order" based upon an "Application for Emergency Order to Summarily Suspend Teaching Certification" of Mannix Barnes. The conclusion of the lengthy order states in part: "effective immediately, the Oklahoma Teaching Certificate of Mannix Barnes is hereby suspended pending an individual proceeding for revocation or other action, effective August 2, 2021 or thereafter as determined by the State Board." ¶6 In July 2021, the petitioners filed a motion for temporary restraining order and preliminary injunction. They requested an order vacating the suspension of Barnes as Superintendent, and an order enjoining respondents from further action against the District or Superintendent unless authorized by the trial court. ¶7 On July 9, 2021, a hearing was held on the motion for a temporary restraining order and preliminary injunction. Counsel for respondents stated an emergency order had been entered on June 24th at a public meeting with reference to Mannix Barnes. Notice was sent by the respondents within three days after the June 24th meeting saying "a hearing will be scheduled on a revocation" "[s]o there is a hearing that will be held on the potential revocation of the District Superintendent's certificate."2 In other words, the State Board used an emergency procedure to summarily suspend Barnes's certificate, but a revocation of his certificate within the context of an administrative individual proceeding3 had not yet occurred. Counsel for respondents stated a scheduled State Board hearing for July 12th would not address Barnes's certificate, but "the District has been put on notice that the State Board may intervene in the School District's operations and that has been notified to them that they may include appointing an interim superintendent." ¶8 The trial court referenced the statements by counsel for respondents and the following occurred during the hearing. Court: And your testimony is, as counsel for the State Department of Ed. . . . And there is a hearing to be scheduled on the revocation of his, the Superintendent's license? Response: That is all correct. Court: So as we sit here today is the Superintendent still the superintendent of Western Heights? Response: As far as I have been made aware, that is true. . . That [recent legislation] requires when an individual, includes the school district superintendent, is suspended by the State Board of Education, the District is required to put the person on suspended leave. . . . Court: All right. And is that leave with pay or leave without? Response: It is leave with pay. The trial court continued its questioning and the State Board stated Barnes was entitled to a Loudermill hearing, but this hearing had not yet occurred.4 Petitioners argued the State Board lacked the power or legal authority to suspend anyone. They argued the State Board could grant a license or revoke a license, but not suspend a license or certificate pending a revocation proceeding. They stated the following. Judge, the word "suspend" is nowhere in that statute [70 O.S. § 3-104]. Nowhere. It talks about revocation. It talks about issuing a license. The word "suspend" is nowhere in the statute. Suspend doesn't come up until you look at the agency regulation, which is ultra vires, they can't just decide with their regulation something that the statute doesn't give them authority to do. ROA 324, Tr. at p. 18. The trial judge then observed the statute [70 O.S. § 3-104] states the Board "shall formulate rules governing the issuance and revocation of certificates for superintendent of schools," and that the Oklahoma Administrative Procedures Act authorized emergency suspensions within the context of pending individual proceedings. ¶9 The parties and the trial judge again discussed the effect of Barnes's emergency suspension. Counsel for the State Board stated emergency suspensions with administrative leave are "with pay" and the persons suspended receive "the benefits that they're otherwise entitled until a [revocation] hearing has been held." Id. Tr. at 340. Counsel for Barnes responded and stated a suspension with pay and benefits was not in a letter sent to the school district, and "Not that it makes any difference, because when they tell Mr. Barnes he can't act as superintendent . . . that's the big harm there." Id. Barnes objected to the State Board considering the application for a summary emergency suspension during an executive session at the State Board's meeting. ¶10 The trial judge appeared to indicate Barnes was entitled to a hearing on the issue of license or certificate revocation, but not entitled to participation in a summary hearing which results in an emergency order of suspension when Barnes (1) continued to receive a salary and benefits after an emergency suspension, and (2) had an opportunity for an administrative hearing after the suspension. ¶11 The trial court denied the request for a temporary restraining order by a journal entry filed on August 6, 2021.5 Petitioners' filed on August 13, 2021, a supplemental motion for preliminary injunction. The same claims were made with some additional facts and argument. They challenged the emergency suspension of Barnes and the ongoing proceedings before the State Board and OSDE involving Barnes and the school district. They labeled their requests as "supplemental requests for relief" challenging respondents' actions. Petitioners included an affidavit of counsel in support of a request for a temporary restraining order. Respondents filed their response on November 4, 2021. ¶12 The trial court's journal entry denied the requests for a preliminary injunction and temporary restraining order. The order was filed November 19, 2021, and the court addressed individually each of petitioners' thirteen supplemental requests for relief. For example, when denying petitioners' first supplemental request: (A) The trial court determined respondents had authority to suspend Barnes's educator certificate; (B) Barnes was not entitled to a full evidentiary hearing prior to the emergency suspension, but Barnes was entitled to a hearing prior to a revocation of his certificate; and (C) The facts asserted in the emergency application to suspend and order of suspension were sufficient to demonstrate an emergency. ¶13 When addressing the first supplemental request for relief the court referenced several specific findings and one general finding referencing "other allegations" made by respondents concerning Barnes and the school district. The specific findings included: (1) The use/management of money including assertions "reflected in the 2019 and 2020 District audits and Barnes's testimony that he allowed things to go for a full year before making changes to what was found in the audits; (2) Child Nutrition Program services were impaired, "including a decision to cease provision of nutritional services to students;" (3) Fire services protection, "including the danger posed from February, 2021 to May 2021, the Oklahoma City Fire Department citation for noncompliance and the information reported by an employee with regard to these matters; (4) "Disharmony in community, parents' voices not heard by leadership;" (5) Significant loss of District personnel while Barnes was superintendent; and (6) District payroll, "Barnes may have inherited a system but he was a school board member and would have been informed and in favor of it." The trial court's order addressed an additional twelve supplemental requests for relief by petitioners which need not be repeated herein except as needed for our analysis of petitioners' assignment of error. II. Appeal and Standard of Review ¶14 Petitioners appealed and filed a motion to retain the appeal in this Court for appellate review. Their motion to retain was granted. The trial court order brought for appellate review denied requests for a preliminary injunction and a temporary restraining order. ¶15 A temporary restraining order is one type of interlocutory order, and many interlocutory orders not subject to immediate appellate review may obtain appellate scrutiny upon appeal from a subsequent appealable order or judgment. 6 This principle supports the rule that no exercise of judicial discretion by a District Court in a civil case at law and in equity is beyond this Court's constitutionally vested appellate jurisdiction.7 However, a request for temporary restraining relief and the order thereon is usually replaced or becomes moot by the procedure and order on a request for a temporary or preliminary injunction.8 ¶16 A petitioner may assert similar legal claims for the remedies of a temporary restraining order and a preliminary injunction with a decision on the latter reviewed in an appeal. This may occur pursuant to 12 O.S. § 1384.1 when a temporary restraining order was dissolved and similar legal claims were presented with a request for a temporary injunction which is examined during appellate review.9 No claim is made petitioners utilized a special statutory procedure creating rights for a temporary restraining order and appellate review outside the scope of 12 O.S.2011 § 1384.1.10 The exercise of discretion by the trial judge denying petitioners' request for a temporary restraining order is not before the Court for review.11 ¶17 Petitioners' petition in error states the appeal is appealable by right because the trial court's order denies a temporary or preliminary injunction.12 Petitioners also request as a form of appellate relief a declaratory judgment on the merits on certain claims. This request raises the issues concerning the nature of their trial court filings, the adjudication of the trial court reviewed on appeal, and whether the request for a declaratory judgment for appellate relief impermissibly broadens the scope of an interlocutory appeal beyond the authorizing statute, 12 O.S.2011 § 952(b)(2).13 ¶18 Two sentences in the six-page trial court order state "petitioners' thirteenth enumerated supplemental request for relief has been previously adjudicated [and] this claim was denied and dismissed during the July 22, 2021, hearing on respondents' motion to dismiss." The request was a "declaratory judgment that the State Board executive sessions were unlawful under the Open Meeting Act." Petitioners' appellate brief-in-chief states the trial court previously dismissed Open Meeting Act claims, stated petitioners failed to exhaust administrative remedies when they failed to appear before a State Board meeting the previous April, and denied the motion to dismiss with respect to claims against the OSDE and petitioners' request for declaratory judgment. One result of this procedure is that the trial court did not finally dispose of all claims at this point because, as indicated by petitioners, claims remained pending in the trial court. ¶19 On August 13, 2021, petitioners filed a Supplemental Motion for Preliminary Injunction, and Brief in Support.14 The document states petitioners are seeking a preliminary injunction. However, the last two pages of the motion list thirteen enumerated specific "supplemental requests for relief." The first enumerated supplemental request specifically requests an injunction. Then enumerated requests "2, 3, 4, 5, 7, 8, 9, 10, 12, and 13 do not request injunctive relief, but request a "declaratory judgment." Enumerated request 6 requests an injunction, and enumerated request 11 asks for "an order barring respondents from issuing and or enforcing an order" related to specific circumstances listed by the parties. ¶20 We construe meaning of statements in the trial court's order based upon plain and consistent language expressed in the context of the purpose sought to be accomplished by the order, while giving effect to every word with the consequences that follow the necessary legal implications of its terms; and we apply a meaning consistent with parts of the judgment roll properly before us.15 Some of the multiple "declaratory judgment" requests for relief appear to relate to requests for injunctive relief based upon petitioners' perspective of the factual circumstances, and some appear to be similar to requests for findings of fact, some similar to conclusions of law, and some similar to a request for a partial summary adjudication. For example, one enumerated supplemental request states: "12. Declaratory Judgment that the March 25, 2021, State Board executive session was unlawful, there was no lawsuit or investigation, and the subsequent vote that the district had violated state laws and regulations was also unlawful since there had been no lawful hearing under the OAPA." ¶21 The multiple specific requests by petitioners for a "declaratory judgment" were denied in the context of the trial court denying a motion for a preliminary injunction. This Court does not review an order denying a request for summary judgment.16 A partial summary adjudication usually lacks immediate appealability as a non-appealable interlocutory order unless otherwise made appealable by statute.17 One purpose of a party seeking a "declaratory judgment" is to obtain a "final judgment" on the merits18 of a judicially cognizable claim or cause of action or actual controversy19 authorized by 12 O.S.2011 § 1651.20 Generally, a declaratory judgment proceeding is neither strictly legal nor equitable and assumes the character of the nature of the controversy.21 A petition for injunctive relief as well as a petition for declaratory judgment may be adjudicated on a motion for summary judgment.22 If the substance of an interlocutory order contains both adjudications of issues that are immediately appealable and adjudications on other issues that are not immediately appealable, then only the former part of the order is immediately appealable.23 ¶22 Generally, a preserved issue of law brought for appellate review receives de novo review.24 Factors such as the nature of the proceeding in the lower tribunal and the tribunal's decision also determine standards for appellate review,25 and in this controversy our appellate review is based, in part, upon the nature of a trial court proceeding in equity and order brought for review which denied a preliminary injunction. ¶23 All this means we review the trial court's denials of supplemental requests for "declaratory judgment" to such extent they may be construed as findings of fact and conclusions of law within a context of a request for preliminary injunctive relief. We may not expand our review of the trial court's findings and conclusions and turn them into a review on the merits beyond the equitable standard of "likelihood of success on the merits" as petitioners' appellate request for relief appears to suggest. This Court does not make first-instance determinations of disputed issues of either law or fact in the exercise of its appellate jurisdiction,26 and our appellate review may not be expanded to a review of the merits of petitioners' trial court claims on an appeal from an interlocutory order denying an injunction. ¶24 The standard of review for an order denying an injunction is whether there was an abuse of discretion by the trial judge,27 and the order will be reversed "only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law."28 Review of an order requesting relief in the nature of an injunction is whether the trial court abused its discretion or entered a decision clearly against the weight of the evidence.29 The trial court's conclusions on issues of law pertaining to the injunctive relief receive a non-deferential de novo appellate review.30 ¶25 We recently have explained what petitioners must show in the trial court to obtain a preliminary injunction. To obtain a preliminary injunction, the plaintiffs must show that four factors weigh in their favor: (1) the likelihood of success on the merits; (2) irreparable harm to the parties seeking injunctive relief if the injunction is denied; (3) their threatened injuries outweigh the injury the opposing party will suffer under the injunction; and (4) the injunction is in the public interest. Owens v. Zumwalt, 2022 OK 14, ¶ 8, 503 P.3d 1211, 1214. While a petitioner seeking a provisional preliminary or temporary injunction need only show a "likelihood" of success and "the burden of proof is less stringent than required in proceedings on the merits,"31 a right to this equitable remedy "must be established by clear and convincing evidence and the nature of the injury must not be nominal, theoretical or speculative."32 We apply the appellate standard of review to what petitioners were required to show in the trial court in the context of the asserted errors on appeal by petitioners. III. Issues and Analysis ¶26 Petitioners raised several assignments of error in a petition in error. They filed appellate briefs in this Court and their assignments of error preserved for review are those in an appellate brief-in-chief with supporting authority.33 ¶27 Petitioners' arguments on appeal are divided between those for the school district and those for Barnes. The school district's principal brief argues: (1) The district must receive an administrative individual proceeding pursuant to the Oklahoma Administrative Procedures Act prior to "any sanctions, takeover, change of accreditation or other punitive actions against the district;" (2) No statutory authority exists for the OSDE "to take over and/or operate a local district, conduct an 'intervention,' or employ or appoint a local school superintendent;" and (3) The Oklahoma Constitution prohibits the State Board from exercising their adjudicative authority outside of an individual proceeding. ¶28 Barnes's principal brief argues: (1) The OSDE denied Barnes's constitutionally protected due process rights34 and failed to follow state law and administrative procedures; and (2) Barnes is entitled to a declaratory judgment and he was not provided statutory and administrative due process. Petitioners' reply brief contains argument on the issues in their principal brief with an additional argument stating the present controversy is an exception to the doctrine requiring exhaustion of administrative remedies. III(A). Barnes's Due Process Claim ¶29 We address Barnes's due process claim before addressing claims made by the school district.35 Barnes argues his Teaching Certification issued by the State Board was not subject to a "suspension" by the Board, and the process used by the Board for the suspension was constitutionally flawed. Barnes argues the Teaching Certification is a professional license and the Board may issue or grant the certificate and the Board may revoke the certificate, but the Board may not suspend the certificate. We disagree. ¶30 For some courts, an entity's power to revoke or remove a person's status granted by a permission, approval, certificate, or license from the entity also usually includes a lesser implied power of suspension when (1) the suspension is temporary and preliminary to, and integrated with, an authorized procedure for removal, and (2) the implied power of suspension has not been withdrawn by statute or constitution. For example, in 1909 this Court noted a split of authority in courts at that time and came to the following conclusion concerning a power to remove an official from office and a lesser included power to suspend. [W]e feel constrained to adopt and follow that rule which appears to us will be more conducive to the administration of justice and the protection of the public against delinquent and corrupt office holders, and to hold that the power to remove for cause, after a hearing only, includes the power to suspend temporarily pending such hearing. Maben v. Rosser, 1909 OK 211, 103 P. 674, 681. Almost three decades later in Rose v. Arnold, 1938 OK 445, 82 P.2d 293, 297, we cited Maben and observed: "This Court is committed to the view that the power to suspend does exist by implication." Then two decades after Rose in State ex rel. Livingston v. Maxwell, 1960 OK 122, 353 P.2d 690, 693, we noted a power to suspend is a lesser and implied power possessed by an entity which also possessed a power to appoint and revoke. ¶31 In State ex rel. Livingston we also observed "one who claims that said authority is not vested with the power of suspension under the general rule of implication, has the burden of establishing his said claim."36 In other words, the power to suspend is presumed to be included in powers to remove and revoke, unless shown otherwise by a party. This lesser and included implied power to suspend pending a hearing in the instance of an office holder and the implied power in the context of removing a public employee as discussed in Maben, Rose, and State ex rel. Livingston are similar to a licensing authority suspending a license pending a hearing on a revocation of the license. ¶32 A state administrative agency has implied powers in addition to the powers expressly granted when such implied powers are necessary for the due and efficient exercise of the express powers.37 A statute creating an express power in the nature of an express affirmative duty normally creates an implied power necessary to fulfill that express affirmative duty.38 An express statutory power and duty by the State Board to exercise a revoking power concerning a teacher's certificate by the State Board of Education is consistent with an included lesser implied power of suspension by the State Board when exercised in a revocation proceeding. ¶33 The trial court relied on 75 O.S. §§ 314(C)(2) & 314.1 of the Oklahoma Administrative Procedures Act (OAPA);39 Oklahoma Administrative Code (OAC) § 210:1-5-6(e); and 70 O.S. §§ 1-105, 3-104, and all were in effect on the date of Barnes's emergency suspension. The OAPA, 75 O.S. § 314, contains the following language. (C)(2). If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined. 75 O.S.2011 § 314(C)(2). The OAPA also contains the following language. As authorized by or pursuant to law, if an agency finds that the public health, safety, or welfare imperatively requires emergency action, has promulgated administrative rules which provide for such action and incorporates a finding regarding the emergency in its order, emergency actions may be ordered pending the final outcome of proceedings instituted pursuant to this article. 75 O.S.2011 § 314.1. This language allows for emergency provisional relief and points to an agency rule for such action. ¶34 The trial court also relied on 70 O.S. §§ 1-105, 3-104. The former section, 1-105, states the OSDE and State Board are part of state government and "charged with the responsibility of determining the policies and directing the administration and supervision of the public school system of the state;" and the State Board of Education "is that agency in the State Department of Education which shall be the governing board of the public school system of the state." The latter section, 3-104, includes the following concerning the State Board. 6. Have authority in matters pertaining to the licensure and certification of persons for instructional, supervisory and administrative positions and services in the public schools of the state subject to the provisions of Section 6-184 of this title, and shall formulate rules governing the issuance and revocation of certificates for superintendents of schools, principals, supervisors, librarians, clerical employees, school nurses, school bus drivers, visiting teachers, classroom teachers and for other personnel performing instructional, administrative and supervisory services, but not including members of boards of education and other employees who do not work directly with pupils . . . . 70 O.S.Supp.2013, § 3-104(6), as amended by Laws 2021, c. 563, § 5, eff. May 28, 2021. The trial court relied on this language when also relying on the Oklahoma Administrative Code (OAC). ¶35 The Okla. Admin. Code § 210:1-5-6, provides for "suspension and/or revocation of certificates," and states its application and authority for "governing suspension and revocation of certificates apply to the following: superintendents of schools, principals, supervisors, librarians, school nurses, school bus drivers, visiting teachers, classroom teachers and other personnel performing instructional, administrative and supervisory services in the public schools." § 210:5-1-6(a). It also contains the following provision. (e) Emergency Action. Pursuant to 75 O.S. § 314, in the event the State Board of Education finds that public health, safety, or welfare imperatively requires emergency action, the State Board of Education may issue an emergency order summarily suspending a certificate pending an individual proceeding for revocation or other action. Such proceedings shall be promptly instituted and determined. Such an order shall include specific findings of fact specifying the grounds for the emergency action. Within three (3) business days of the issuance of the order by the Board, a copy of the order shall be sent to the holder of the certificate via certified or registered mail, delivery restricted to the certificate holder, with return receipt requested. OAC § 210:1-5-6(e) (2020). This language in OAC § 210:1-5-6 appearing in paragraphs (a) & (e) was in effect on the date of the emergency application and emergency order suspending Barnes's certificate.40 Language addressing an "emergency order summarily suspending a certificate pending an individual proceeding for revocation or other action," was added to OAC § 210:1-5-6 several years prior to Barnes's emergency suspension.41 Generally, a regulation or rule promulgated by an administrative agency charged with administration of an act has force and effect of law.42 The OAC provision for a suspension in a pending proceeding for revocation was created in 2013, and the Legislature directed the State Board pursuant to 70 O.S.Supp.2013 § 3-104 to create rules for revocation proceedings. ¶36 We discern legislative intent in statutes by examining the plain and unambiguous language expressed.43 The plain language of these four statutes, 75 O.S. §§ 314(C)(2) & 314.1; 70 O.S. §§ 1-105, 3-104; and OAC § 210:1-5-6(e) is consistent with a common-law rule of a lesser implied power of suspension included within a greater power to revoke a license when a revocation proceeding has, or immediately will be, commenced in addition to the suspension. When the plain and unambiguous language of current statutes is consistent with the common law in this State, such as expressed by opinions herein from this Court dating from 1909 to 1960,44 then the Legislature has indicated the statutes and the common law are to be read together as one harmonious whole.45 ¶37 We also note current statutory authority recognizing a suspending power connected with a revoking power and the State Board's review of a teacher's certificate. A teacher whose certificate was suspended by the State Board of Education pursuant to Section 3-104 of this title and Sections 314 and 314.1 of Title 75 of the Oklahoma Statutes shall be placed on suspension pursuant to the provisions of Section 6-101.29 of this title while proceedings for revocation or other action are pending before the State Board of Education. The provisions of this subsection shall not preclude the initiation of due process procedures in accordance with Section 6-101.20 et. seq of this title. 70 O.S.Supp.2020 § 6-101 (L) (as amended by Laws 2021, c. 343, § 1, eff. July 1, 2021). This language became effective a few days after the emergency suspension of Barnes's certificate on June 24, 2021, and is not a necessary element to our holding. However, this language does show a current legislative intent on this issue, and we note our conclusions are consistent with this recently enacted statutory language. ¶38 Barnes argued in the trial court the application for emergency suspension was not a suspension but a revocation because (1) a "revocation" was mentioned in the emergency application and (2) the State Board lacked authority for suspending a certificate. The trial court disagreed and read the State Board's administrative application as one for an emergency summary suspension in a proceeding where the State Board was also seeking a revocation with an opportunity for Barnes to appear at a hearing on a future date. We agree with the trial court. The authority cited by the trial court is sufficient to support the trial court's conclusion Barnes had failed to show a likelihood of success on the merits of his claim asserting the State Board lacked the authority to suspend his certificate. ¶39 The second prong of Barnes's due process argument concerns his lack of an opportunity to turn the hearing on the emergency summary application into a "full and fair hearing" on all of the claims raised against him. Barnes sought preliminary injunctive relief to provide him an administrative individual proceeding with sufficient notice to appear, argue, and present evidence prior to a "suspension." The State Board argued Barnes was not entitled to an opportunity for an evidentiary hearing in the context of an emergency summary application to suspend, but he was entitled to a full hearing at a later date on the State Board's application to revoke Barnes's certificate. ¶40 When this issue was argued in the trial court hearing, the opposing parties made different assumptions as to when Barnes was entitled to a hearing. Assuming Barnes had an interest protected by due process, the issue becomes when that interest is deprived by the administrative process. Barnes asserted the interest was deprived by the summary emergency hearing and its procedure, and Barnes's argument indicates any remedy he possesses after the summary hearing, e.g., a revocation hearing, is a post-deprivation remedy, and its adequacy measured by post-deprivation standards. However, the State Board indicated Barnes's due process interests were protected because he would receive a pre-deprivation remedy in the form of his revocation hearing after the emergency suspension, and this pre-deprivation remedy satisfied due process. ¶41 Thirty-four years ago in Short v. Kiamichi Area Vocational--Technical School District No. 7 of Choctaw County, 1988 OK 89, 761 P.2d 472, we addressed the due process protection of property interests in a specific public employment context; and we held a discharged tenured teacher was entitled to a pretermination hearing with the local school board before the termination of employment became final. We relied on Cleveland Board of Education v. Loudermill, supra, and explained "before a pretermination hearing is required, it must be demonstrated that there is an existing right in continued employment."46 Further, "[t]his right must arise from some independent source, e.g. state law, sufficient to create a legitimate claim of entitlement."47 Due process protection applies to an identifiable property interest threatened by the administrative order: "A tenured teacher's right to continued employment may be construed as a property interest subject to due process protection if the Legislature has created the right through statutory enactment."48 Short and Loudermill require a cognizable legal interest possessed by Barnes which was taken or reduced by the summary emergency order. ¶42 If Barnes possesses an identifiable legal interest harmed by the summary emergency order, then we must determine if the process used was sufficient to protect that interest when Barnes's interest is weighed against the State's interest and a risk of an erroneous decision by the State when using the challenged procedure. We have explained the inquiry as "whether the individual possessed a protected interest to which due process protection applies and if so, whether the individual was afforded an appropriate level of process."49 We have also held minimum standards of due process require notice calculated to provide knowledge of the exercise of adjudicative power and an opportunity to be heard when administrative proceedings directly and adversely affect legally protected interests.50 ¶43 Barnes states he did not receive the proper three-day notice of the administrative suspension proceeding, but the authority he cites relates to a revocation proceeding and not a summary emergency suspension. The State Board states notice of the summary emergency application was provided by email to Barnes the day before the Board considered the emergency application, but the Board does not explain what this type of notice was attempting to accomplish in a constitutional sense. The trial court record shows Barnes received notice after the emergency suspension. Further, the trial court's order states with respect to the summary suspension: "The record indicates Barnes was given actual notice, including Barnes testifying that he received notice; thus his due process rights were not violated [and] Barnes's complaint regarding non-compliance with 75 O.S. § 314(C)(1) is in error with regard to the emergency suspension...." ¶44 A dialogue of the trial judge with counsel for both parties addressed identifying Barnes's legal interests which had been directly and adversely affected by the emergency suspension order and Barnes's remedy after the suspension hearing. Barnes's suspension was not for the purpose of suspending or ceasing payment of his salary and he continued to be a "superintendent." Barnes pointed to two interests which were affected by the emergency suspension (1) he was denied sufficient notice to give him an opportunity to present evidence and defend his reputation, and (2) he could not act as a superintendent due to being placed on administrative leave. ¶45 The U.S. Supreme Court has recognized interests other than a "mere loss of money" such as the risk of a party "having his reputation tarnished erroneously" due to a particular judicial procedure.51 However, due process "is flexible and calls for such procedural protections as the particular situation demands."52 The U.S. Supreme Court "has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause."53 ¶46 We need not hold that Barnes actually possesses the two asserted interests of reputation and continued decision-making in the context of the summary emergency proceeding. However, assuming for the purpose of Barnes's argument the two interests are protected in a present context by due process,54 the record before us is sufficient on appellate review for the Court to conclude the revocation hearing after Barnes's suspension is a sufficient remedy, and the trial court's order was not an abuse of discretion. ¶47 The trial judge discussed these principles during the hearing and her views were reflected in her subsequent order. The order states "Barnes is not entitled to an individual proceeding prior to the emergency suspension," "the Court finds there is an emergency demonstrated for the emergency suspension of the Certificate," and "Barnes is still entitled to the opportunity for a full and fair hearing prior to any revocation of the Certificate." Barnes's responses to these concepts in the trial court and also in his appellate brief are that the factual allegations made against him did not constitute "a legitimate emergency" and they were false. ¶48 The State Board's emergency order of suspension adopts assertions made in the application for a summary order. The order states the school district hired Barnes as superintendent in August 2019, and certain issues developed during his tenure. One was a violation issued in April 2021, by the Oklahoma City Fire Department which indicated a majority of the sprinkler system in a high school was nonfunctional, and this condition was known by the school district for more than sixty days prior to the citation. ¶49 Additional assertions include: The school district had chosen to suspend food services to children while schools were closed due to COVID-19 conditions while other schools in the state continued food service during closures; The school district resumed food services after "facing Department and Board intervention including potential accreditation and funding consequences; The school district "offered no in-person supports of any kind to students with disabilities" when needed due to COVID-19 closure; Staffing of special education teachers was impacted and "[Barnes] has fired the only severe/profound teacher we had at the high school without a replacement, he fired a deaf ed interpreter, and we have had at least one other special education teacher quit without any new hires;" "It is the Department's understanding that the District's current plan for delivering alternative education for at-risk students consists solely of requiring these students to use an online learning platform . . . without providing District teachers or the direct supports school districts are required to provide for alternative education students;" Emergency funds in the amount of $17,779,545.15 had been allocated to the school district "to make improvements and repairs to school facilities such as to ensure with fire code and sprinkler systems so as to protect the health and safety of persons entering school facilities . . . [t]his, however, Barnes failed to do;" Federal funds were made available "to reduce impacts of learning loss to students as a result of disruptions to learning caused by the pandemic, including extending the school year, increasing opportunities for learning, and increasing summer school programs . . . [a]gain, Barnes has not increased such services with the federal fund claims submitted [by the school district] to the OSDE." ¶50 Additional assertions include: The school district "objected to continuing to pay its support (non-certified) employees while public sites were closed due to the COVID-19 pandemic emergency, despite provisions in law authorizing and encouraging school districts to do so; Certified employees were allowed to use the 'snow days' due to severe winter weather but all support employees were required to report to work although no students were present;" "For the last two years, the District, under Barnes's leadership, is the only school district in the State of Oklahoma that collectively bargains with employees to not successfully negotiate employment agreements with the personnel bargaining unit in the school district," and "it is the Department's understanding that written teacher contracts for FY2021 were not executed by the District pursuant to 70 O.S. § 6-101." ¶51 Additional assertions are: The OSDE began receiving communications from school district employees they were being denied access to certain accounts maintained by the school district through employee payroll deductions pursuant to state statute, these accounts were used by employees to pay for medical care, and they were denied access because "the accounts were in arrears;" Barnes "attributed all payroll problems concerning these accounts to the District's selected vendor" and he stated no corrective action was needed at that time; but "complaints and allegations regarding employee benefit accounts being in arrears have continued;" During Barnes's two years as superintendent "the District has sustained a staggering thirty-seven percent (37%) loss of staff;" and at the school district's June 14, 2021, meeting, the agenda shows twenty-one certified employee departures and one employee new hire. ¶52 Additional assertions are: "Under Barnes's leadership, the district has consistently had governance and financial issues, which according to an audit included numerous adjusting entries to the District's books in order to attempt to balance bank records," "checks cleared by adjusting entries done in batches and in several instances checks were cleared twice," transfers to Teacher Retirement Clearing Account not coded as general fund expenditures, Teacher Retirement System late penalties not properly coded, $169,006.80 in investment interest received and not coded as revenue, $144,837.97 of returned items needed reconciliation bank statements and an activity fund not properly balanced and kept up to date. ¶53 The State Board asserted upon an inquiry why certain programs and instruction were not being provided to students, "Barnes has misrepresented that funds available in the District have been reduced;" but the general operation funds available for 2019 were $33,296,487.76, and in 2020 an amount of $34,741,925.21, and federal COVID-19 emergency funds available to the district in 2020-2021 "add more than $17.5 million to the District's ordinary available fund totals."55 ¶54 Barnes states these reasons do not constitute an emergency. The State Board indicated the total weight of the circumstances shows Barnes's leadership failed to provide instruction and programs for students as required by law. Barnes requested a preliminary injunction, and a court sitting in equity exercises discretionary power in accordance with equitable principles and in light of all circumstances.56 When assessing a "totality of circumstances," or "the sum of an evidentiary presentation," then the totality or the sum "may well be greater than its constituent parts."57 This appears to be the approach taken by the State Board, the sum of identified problems qualifies as an emergency and requires immediate attention and correction. ¶55 A totality-of-circumstances analysis for Barnes's requested judicial equitable relief includes not only the material presented for his emergency suspension before the State Board, but also the circumstances present in the equity proceeding itself. For one example, Barnes complains both his lack of an opportunity to immediately defend his public reputation and a post-suspension revocation hearing are inadequate to defend his reputation. However, Barnes brought this proceeding in the District Court a few months prior to the suspension and many of the same issues were part of either his petition or the motion to dismiss filed by the State Board in response to his petition. In other words, he complains he did not get an opportunity to publicly defend issues raised in the suspension application when he previously raised the issue of his conduct as part of a public record in this proceeding. Barnes is currently participating in a public district court proceeding with opportunities for him to raise issues and champion his prior conduct. The State Board also explained he possessed a remedy to champion his cause in a revocation hearing. ¶56 In Gilbert v. Homar, the U.S. Supreme Court assumed that an employee's temporary suspension of pay infringed a protected property interest.58 The Court stated it has balanced distinct factors in this type of controversy: the private interest that will be affected by the official action, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards and finally, the Government's interest.59 ¶57 In a unanimous decision by the Court, Gilbert noted if an employee receives a prompt post-suspension opportunity to be heard the deprivation of the due process interest will be minimal, and will be outweighed when a strong government interest is present, such as felony charge against an employee.60 A similar conclusion is proper in this case, assuming for the purpose of argument Barnes possesses his two asserted due process interests in the context of the summary proceeding, the nature of the allegations against him concerning proper education for students in the district and immediate financial accountability of a public purse outweigh his two interests since he possesses the opportunity to a prompt administrative revocation hearing. ¶58 Barnes failed to show a likelihood of success on the merits of his claim that a due process violation occurred. Barnes failed to show an abuse of discretion by the trial court when he was denied a preliminary injunction. III(B). Barnes's Exhaustion of Remedies ¶59 The trial court's order "finds that Barnes has failed to exhaust his available administrative remedies provided by the OAPA." The order also states "Barnes has the opportunity for a full and fair individual proceeding under the OAPA, that is the procedure available to him, he must use it to exhaustion." Barnes's appellate reply brief argues he may challenge an agency rule by declaratory judgment, and "if the question of substantive or procedural due process is raised, if there is a constitutional question that will remain no matter what the agency does, . . . if the appeals would be futile . . . or if the agency actions could cause irreparable injury to the party" then exhaustion is not required. He argues his administrative remedy would be ineffective or futile, and "revocation of the Superintendent's license . . . would constitute irreparable harm." ¶60 The authority relating to administrative exhaustion cited by Barnes is applied incorrectly in this controversy. Five years prior to Barnes filing his District Court action, we explained in Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477, a fact-finding associated with interpretation and application of statutory authority consistent with a constitutional provision in an administrative proceeding may obviate a need to adjudicate unconstitutionality of a statute or an official's conduct based upon that interpretation in a District Court proceeding. Id. ¶ 10, 371 P.3d at 482. ¶61 Barnes states the allegations of fact made against him in the application for emergency suspension were not correct. The trial court indicated he can challenge the veracity of the allegations in a future administrative revocation hearing. An administrative hearing addressing facts relating to the instruction, educational programs, and finances of the school district and Barnes's participation in these allegations may be determined in an administrative context, and obviate the need for a District Court adjudication of a constitutional claim. ¶62 We recently discussed requiring exhaustion when the administrative proceeding could be used to develop the record of facts necessary for a constitutional challenge to an official's application of statutory authority, as opposed to a challenge based upon facial unconstitutionality of a statute.61 Barnes does not dispute that a revocation hearing on the issue of a Teaching Certification is within the authority of the State Board. Barnes's argument does not show the scope of an administrative revocation hearing would necessarily be limited by statute or otherwise, or would become ineffective for the purpose of creating a factual record to support any of his constitutional claims against the State Board. ¶63 Barnes has not shown an abuse of discretion by the trial court when it ruled he possessed an administrative remedy he had failed to exhaust, and he was required to exhaust that remedy by using an available revocation hearing before the State Board concerning his Teaching Certification. ¶64 Barnes failed to show a likelihood of success on the merits of his claim that his administrative remedy was inadequate. III(C). Claims Asserted by School District ¶65 The school district challenged the authority of the OSDE and the State Board. The school district objected to the OSDE and State Board requiring school district representatives to appear before them and discuss concerns relating to the school district. The school district also challenged any exercise of authority by respondents resulting in a negative impact upon the school district unless the exercise of authority was pursuant to an Oklahoma Administrative Procedures Act individual proceeding. The school district's appellate brief argues: there are no statutory powers for the State Board to operate local school districts or carry out the duties of local boards of education. ¶66 Petitioners' petition in the District Court states the school district was placed "on probation," and attached a letter from the State Superintendent of Public Instruction and Chair of the State Board of Education. The letter stated the school district was assigned "accredited With Probation," and accredited status must be maintained to receive state funding. The letter explains that the school district has ninety days to successfully implement actions listed in the letter. The letter invites representation from the school district, specifically Superintendent Barnes, and a specified member of the school board to appear at a regularly scheduled State Board meeting six days after the date of the letter. ¶67 The supplemental motion for a preliminary injunction states that on July 12, 2021, the State Board had ordered a "full state intervention." The school district argues "There is no hierarchy as between the four entities," OSDE, State Superintendent of Public Instruction, local board of education of school districts, and superintendent of a local school district. In summary, the school district argues: "local boards of education [are] to run local school districts," a State Superintendent has no authority "to employ or appoint a local public school superintendent or any other employee," and "there are no statutory powers for a State Board to operate local school districts or carry out the duties vested in the local boards." ¶68 The school district's challenge to the authority of the OSDE relies upon an assertion of the OSDE's lack of statutory authority to act, and three opinions involving the school district. The school district argues it must receive an individual administrative hearing before it has any change to its status by the OSDE. The school district relies on Western Heights Independent School District No. I--41 of Oklahoma County v. State ex rel. Oklahoma State Department of Education, 2007 OK CIV APP 21, 156 P.3d 53; Western Heights Independent School District No. I--41 v. State ex rel. Oklahoma Department of Education, 2007 OK CIV APP 92, 169 P.3d 417; and Western Heights Independent School District No. I--41 of Oklahoma County v. State ex rel. Oklahoma State Department of Education, 2011 OK CIV APP 33, 252 P.3d 284. ¶69 In Western Heights Independent School Dist. No. I--41 of Oklahoma County v. State ex rel. Oklahoma State Department of Education, 2007 OK CIV APP 21, 156 P.3d 53, the OSDE was responsible for implementing the federal No Child Left Behind Act, 20 U.S.C. §§ 6301 et seq., and if schools failed to meet the Academic Performance Index (API) benchmarks for the implementation, then they were required to make Adequate Yearly Progress (AYP) reports and were subject to sanctions pursuant to a section in the Oklahoma Administrative Code if yearly progress was not made. Data reports were provided to school districts for review and reporting discrepancies, and regulations stated school districts "may appeal AYP determinations in the Data Reports." ¶70 The school district's administrative appeal was denied because it was not "based on substantial or statistical criteria." The school district argued it was entitled to an Oklahoma Procedures Act Administrative proceeding. The OSDE disagreed. The trial court dismissed the district court petition because it was not filed within thirty days of the OSDE order, and this order was affirmed on appeal. The appellate court indicated the school district was entitled to an administrative individual proceeding,62 but had missed the deadline for filing review of the OSDE's order in District Court. ¶71 School district argues the doctrine of "the law of the case" applies with Western Heights, 2007 OK CIV APP 21, 156 P.3d 53, and the two additional opinions with Western Heights as a party. OSDE argues any of the language or references in the three opinions suggesting or requiring an administrative individual proceeding is merely dicta and not applicable. Of course, dicta63 is language not part of the ratio decidendi of a court's opinion;64 and dicta is not binding as part of the law of the case,65 and does not possess persuasive value.66 However, we need not examine the language in these opinions for identifying dicta, since the school district's use of the doctrine of the law of the case is not applicable for another reason. ¶72 The settled-law-of-the-case doctrine operates to bar relitigation of issues decided and involved by implication in a prior appellate opinion when occurring upon a record in the same case or controversy.67 This doctrine does not apply to the three cited opinions because the present controversy is not based upon the same record and proceeding as the three prior District Court proceedings. ¶73 The OSDE is bound by the final judgments in Western Heights, 2007 OK CIV APP 21, 156 P.3d 53, and the other litigation.68 However, a binding effect from a prior case cannot extend to issues and facts which are, or are deemed to be, outside of the judgment roll of the prior case as determined upon a party producing an official court record or other appropriate substitute for the record of the prior case and enforcement in the current proceeding.69 The record before us indicates the school district does not rely upon a judgment roll in a prior case, but upon the language appearing on the face of the published opinions for an offensive, rather than defensive use, of adjudications in the former cases involving the school district. If we assume for the purpose of this argument the school district's procedure is proper, then a binding or persuasive use of the opinions could not occur due to the nature of the school district's claims and the injunctive remedy sought by the school district. ¶74 A procedural due process right such as that raised by petitioners, is defined by, or identified with, the "precise nature" of the party's interest threatened by the State, and the "adequacy of the State's process" or specific procedure for deprivation of that specific interest.70 The face of the opinion in Western Heights, 2007 OK CIV APP 21, 156 P.3d 53, does not address the then available State process as it relates to a specific legal inadequacy necessitating an administrative individual proceeding for the school district's specific interest. If we assume for the purpose of argument the nature of the school district's interest is protected by procedural due process, then the school district must still identify the inadequacy of available State process showing the particular process sought by the school district is the proper process for the school district's specific protected interest. This is so because: "The Due Process Clause does not, by itself, mandate any particular form of procedure . . . . Due process is flexible, and a court must evaluate a challenge to due process based on the facts of a particular situation."71 ¶75 These principles are important to the controversy for two reasons: (1) A procedural due process violation is based upon the absence or inadequacy of State procedure for the legal interest,72 and (2) Equity will not be used to thwart an adequate, clear, and certain statutory remedy which was not sought by a party possessing a statutory right enforceable by the statutory remedy.73 When the trial court denied the preliminary injunction request, it noted the school district's action in declining an invited opportunity to meet, discuss, or report with the State Board. ¶76 The trial court stated the following findings and conclusions of law in its order with respect to the school district's challenge to the exercise of authority by the State Board and the OSDE. . . . Pursuant to 70 O.S. §§ 1-105 and 3-104, OSDE has the authority to annex, deny accreditation, place on probation and take any other action on the operation of the District. Further, as a matter of law, the State Board has the authority, pursuant to 70 O.S. § 3-104(13), to require administrators to report, by writing or in-person, to address any concerns and if those individuals fail to do so, action can be taken against them. The record in this case shows that Barnes was given the opportunity to appear before the State Board on behalf of the District, he relied on the advice of legal counsel and he cannot now use that advice as a shield to claim he did not have an opportunity. . . . . . . Pursuant to 70 O.S. § 3-104, the State Board and the State Superintendent have the authority to compel the District to answer questions about how it is being run. . . . . . . The record is clear that Respondents did not adjudicate the District's accreditation status at the State Board's March 25, 2021 meeting. This is further made clear by the March 30, 2021 correspondence sent to the District, the correspondence between the parties from then, and is the very purpose of why the District and Barnes were invited to the April 9, 2021 meeting of the State Board. Barnes's testimony of having prior experience as a school board member and as a school superintendent led the Court to question the veracity of his claim to not understand the plain language of the minutes and notice he testified to receiving and reading. As to the documents relied upon at that meeting, the documents that were used during the meeting were publicly available or under the custody and control of the District. Petitioners did not offer any testimony that anyone outside of Barnes had difficulties accessing published documents. . . . . . . Oklahoma law is clear that Respondents have statutory and constitutional authority to take the actions they have, follow the process they have, including to appoint or employ a superintendent or interim superintendent for the District, to operate the District and to conduct a full state intervention of the District if there is a factually supported basis. 70 O.S. §§ 1-105, 3-104, 3-104.3, 3-104.4; Okla. Const. art. 13, § 5. To rule otherwise would render the State Board's role superfluous. ¶77 The Oklahoma Constitution states: "The Legislature shall establish and maintain a system of free public schools wherein all the children of the State may be educated." Okla. Const. Art. 13 § 1. This Court has explained the Legislature "has plenary power to create, abolish or change school districts."74 The Oklahoma Constitution also states: "The supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law." Okla. Const. Art. 13 § 5.75 Additionally, 70 O.S.2011 § 1-105(B) states "The State Board of Education is that agency in the State Department of Education which shall be the governing board of the public school system of the state." The power of the Legislature to declare under what conditions and limitations a school may voluntarily or involuntarily cease to function cannot be doubted.76 The Legislature possesses power to delegate authority to the State Board to determine facts and enact rules within prescribed legislative standards.77 ¶78 The trial court made a finding the school district and Barnes were invited to a meeting of the State Board to discuss the Board's concerns relating to the District. The school district and Barnes united in objecting to being invited to the State Board's meeting. In I.T.K. v. Mounds Public Schools, 2019 OK 59, 451 P.3d 125, we explained the Oklahoma Administrative Code recognizes the importance of a superintendent's daily role for a properly functioning school district, e.g., "a superintendent is a public day-to-day representative for the board of education," "a superintendent has a duty to implement the written policies of the board of education," and "a superintendent implements a policy sound in nature and functional for the management and operation of the district's business."78 ¶79 An additional role of a school superintendent is that of implementing a public policy which has been statutorily enacted with a State Board possessing a role supervising a local school district's (and superintendent's) implementation. The Legislature's determination of public policy by a statutory enactment is followed by the State Board of Education, and implemented by a local school district pursuant to the extent of supervision possessed by the State Board either express or implied.79 The Legislature has determined that a school district providing information required by the State Board is important for the supervisory role of the State Board because a school districts's failure in this regard may result in the State Board withholding "all state funds" pursuant to 70 O.S. § 3-104(13).80 ¶80 The Oklahoma Administrative Code has a provision stating if a school site is placed on warning or probation then representatives from the school "will meet" with state personnel prior to a report to the State Board. The OSDE references OAC § 210:35-3-201, which states as follows. 210:35-3-201. Statement of the standard (a) Each public school site, including charter school sites, must submit an Application for Accreditation to the Accreditation Standards Section of the State Department of Education by the due date specified on the Application. School sites are accredited for one year. An accredited school site shall meet all applicable regulations and statutory requirements at the beginning of and throughout the school year. (b) Accreditation status of school sites shall be classified according to the following categories: (1) Accredited With No Deficiencies--All standards are being met. (2) Accredited With Deficiencies--A school site fails to meet one or more of the standards but the deficiency does not seriously detract from the quality of the school's educational program. (3) Accredited With Warning--A school site fails to meet one or more of the standards and the deficiency seriously detracts from the quality of the school's educational program. (4) Accredited With Probation--A school site: (A) consistently fails to remove or make substantial progress towards removing all deficiencies noted the previous year; and/or, (B) consistently violates regulations; and/or, (C) deliberately and unnecessarily violates one or more of the regulations. (5) Nonaccredited--The school site is no longer recognized by the State Board of Education. (c) If a school site is placed on warning or probation, the school board and administration will meet with one or more representatives from the Accreditation Section to review their accreditation status. After the review from the representative(s), a determination will be made concerning warning, probation or nonaccredited status. The Accreditation Section will then present a recommendation to the State Board of Education. OAC § 210:35-3-201 (amended by 34 Okla. Reg. 1103, Sept. 11, 2017). An agency's administrative rule has the force and effect of law when properly created, its content is within the express or implied authority of the agency granted by statute, and the rule is consistent with Federal and State Constitutions.81 The Administrative Code previously specified a time for a school implementing standards, but the provision was revoked in 1998,82 and timing is now provided by a statute which works with this rule. ¶81 The administrative rule works with 70 O.S.2011 §3-104.4(C), which states as follows. C. Except as otherwise provided, schools shall meet the accreditation standards as a condition of continued accreditation. Nothing herein shall be construed as preventing changes to the adopted standards by the State Board of Education pursuant to the Administrative Procedures Act. The accreditation standards shall provide for warnings, probation or nonaccredited status for schools that fail to meet the standards. The Department shall investigate a complaint of failure to provide educational services or failure to comply with accreditation standards within thirty (30) days of receiving the complaint. If the Department determines that a school has failed to comply with the accreditation standards, the Department shall report the recommended warning, probation or nonaccredited accreditation status to the State Board of Education within ninety (90) days. If a school does not take action to comply with the accreditation standards within ninety (90) days after a report is filed by the Department, the Board shall withdraw accreditation for the school. The State Board accreditation regulations shall provide for warnings and for assistance to schools and school districts whenever there is reason to believe a school is in danger of losing its state accreditation. 70 O.S.2011 §3-104.4(C) (as amended through May 28, 2021) (emphasis added). The combined procedure of OAC § 210:35-3-201 and 70 O.S.2011 §3-104.4(C) involves warnings, probation, and also a school district's loss of accreditation. ¶82 When an elementary school district (a district with grades kindergarten through eight and not designated as independent) fails to satisfy accreditation standards, then the State Board of Education may issue an administrative order placing the district under full state intervention pursuant to the procedure in 70 O.S.2011 § 1210.543, which provides for a public hearing and an appeal to the district court. Title 70 Oklahoma Statute § 104.4 provides authority for the State Board to annex a school district to other districts upon the loss of accredited status. D. If one or more school sites fail to receive accreditation as required pursuant to this section or subsequently lose accreditation, the State Board of Education shall close the school and reassign the students to accredited schools within the district or shall annex the district to one or more other districts in which the students can be educated in accredited schools. A more general grant of authority is made stating the State Board "shall take action as required by this act to ensure that students affected are enrolled in schools that are able to maintain state accreditation." 70 O.S. § 3-104.3 (B) (emphasis added).83 The term "shall" is ordinarily interpreted as a command or mandate; however directory construction rather than mandatory for the word "shall" may be made upon a finding of legislative intent for such construction.84 ¶83 Lesser included sanctions specified by statute include warnings and probation for a school district. For example, 70 O.S. § 3-104.4(C) states in part: "The accreditation standards shall provide for warnings, probation or nonaccredited status for schools that fail to meet the standards." The Legislature requires the State Board to provide "assistance" to a school in danger of losing accreditation: "The State Board accreditation regulations shall provide for warnings and for assistance to schools and school districts whenever there is reason to believe a school is in danger of losing its state accreditation." 70 O.S.2011 §3-104.4(C). ¶84 Petitioners argue there is no "hierarchy" in the relationship between State and local authority, so the State Board may not substitute a temporary and interim superintendent as a condition of the school district's probationary status without an express statutory authorization. The argument rests upon a theory similar to one we expressly rejected in 1947. ¶85 In School District No. 25 of Woods County v. Hodge, 1947 OK 220, 183 P.2d 575, we explained Okla. Const. Art. 13, § 5 vests in the State Board of Education the power of supervision of instruction in the public schools of Oklahoma, and these powers and duties "shall be prescribed by law." A party argued in Woods County an "additional grant of power and authority apart from supervision of instruction" to change, alter, and annex local school districts could not be given to the State Board because the additional power was not within the scope of supervision of instruction. We rejected the argument. ¶86 We explained: "The Constitutional provision vesting the power of supervision of instruction in the Board of Education is not a limitation, but a grant of power." In Woods County a party argued the absence of a power to annex and alter school districts in Art. 13 § 5, meant such power could not be statutorily conferred on the State Board, and we rejected the argument. Petitioners argue there is an absence of express statutory language in Title 70 stating the State Board may require a temporary superintendent as a condition of probation. They argue this absence means the State Board may not impose an interim superintendent without the local school district's permission. We reject the argument. ¶87 Again, in I.T.K. v. Mounds Public Schools, supra, we explained the importance a superintendent has in a daily role to create a properly functioning school district. The State Board is given express powers to place a school district on probation and "shall take action as required by this act to ensure that students affected are enrolled in schools that are able to maintain state accreditation." When the State Board requires an interim or temporary superintendent as a necessary solution to preserve a school district's accreditation, then the State Board is exercising a necessarily implied and lesser power to effectuate a statutory mandate.85 ¶88 Petitioners failed to show a likelihood of success on the merits on their claim the State Board lacked authority to place the school district on probation with a condition requiring an interim superintendent. ¶89 The statutes and provisions of the administrative code raised by the parties provide procedures for probation and loss of accreditation, but do not provide for an administrative individual proceeding when the State School Board is providing a warning, or imposing a probation, or a loss of accreditation status. The preserved argument before the trial court was that the school district was put on probation with conditions, and the school district has a due process right not to be put on probation status without an administrative individual proceeding. The language in the statutes, including time limits for corrective relief and authority of the State Board, shows a high degree of authorized supervision by the OSDE and the State Board. This language appears to assume a local school district will work with State officials in implementing the interpretation of the legislative will made by the State Board instead of litigating the State Board's interpretation by requiring the State Board to satisfy a burden of proof in an individual proceeding. Not every action by a State agency is authorized by an order issued in an Oklahoma Administrative Procedures Act individual proceeding: "The Legislature recognizes that agencies take actions and make decisions, other than by individual proceedings for which the right to judicial review is intended to be exercised pursuant to other laws." 75 O.S.2011 § 308a. ¶90 The power and authority placing the school district on probation status was pursuant to a statutory power granted the State Board by the Legislature. The State Board may not implement the legislative will by the exercise of power that is arbitrary and capricious, and judicial review of an arbitrary and capricious exercise of that power by respondents is not contingent upon the school district having a right to an individual proceeding.86 ¶91 A likelihood of success on the merits of a claim asserting a right to an individual proceeding and obtaining an injunction must be based upon a showing the rule and statutory procedure imposing the sanction on the school district are inadequate to protect a legal interest possessed by school district and that interest is legislatively intended to be protected by an administrative individual proceeding. This showing was not made in the trial court, and the scope of our holding on this point is limited to petitioners failing to make the required showing to obtain an injunction. Petitioners failed to show a likelihood of success on the merits of their claim they were entitled to an administrative individual proceeding prior to the school district being placed on probation. IV. Conclusion ¶92 We hold the Superintendent failed to show a likelihood of success on the merits of his claim that a due process violation occurred, or a likelihood of success on the merits of his claim that his administrative remedy was inadequate, and failed to show he was entitled to a preliminary injunction. ¶93 We hold the School District failed to show likelihood of success on the merits on a claim the State Board lacked authority to place the school district on probation with a condition requiring an interim superintendent, and failed to show a likelihood of success on the merits of a claim the school district was entitled to an administrative individual proceeding prior to the school district being placed on probation, and school district failed to show it was entitled to a preliminary injunction. ¶94 The order of the District Court is affirmed. ¶95 ALL JUSTICES CONCUR. FOOTNOTES 1 Counsel filing a timely entry of appearance in the appeal are listed in the Court's opinion as appearing in the appellate courts. State ex rel. Oklahoma Bd. of Med. Licensure & Supervision v. Pinaroc, 2002 OK 20, n.1, 46 P.3d 114, 116. 2 ROA, Okla. Sup. Ct. No. 120,034, at p. 315, Tr. at p. 9. 3 75 O.S.2011 § 309 of the Oklahoma Administrative Procedures Act provides for an administrative individual proceeding. 4 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Daffin v. State ex rel. Okla. Dep't of Mines, 2011 OK 22, ¶ 20, 251 P.3d 741, 748 ("Loudermill held that a state legislature which conferred a property interest in employment, i.e., tenure for teachers, could not constitutionally authorize the deprivation of that interest without appropriate procedural safeguards."). 5 ROA at 719, Journal Entry, Aug. 6, 2021 (Order references hearing on July 8 2021, and states the motion for temporary restraining order is denied). 6 Andrew v. Depani-Sparkes, 2017 OK 42, ¶ 9, 396 P.3d 210, 214. 7 Dopp v. Kirkendall, 2021 OK 52, ¶ 16, 498 P.3d 287, 294. 8 Jennings v. Elliott, 1939 OK 554, 97 P.2d 67, 70 ("The only office of a restraining order is to restrain the party against whom it is issued pending a hearing for a temporary injunction. It is merely an order intended to preserve the present status until a hearing may be had upon a pending application for a temporary injunction...."); 12 O.S.2011 § 1384.1 (D) ("When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order."); Owens v. Zumwalt, 2022 OK 14, ¶ 7, 503 P.3d 1211, 1214 ("A preliminary injunction preserves the status quo until there can be a final determination of the controversy."). 9 12 O.S. 2011 § 1384.1(D). 10 Id., § 1384.1 (E), ("This section shall not apply to temporary restraining orders in actions for a divorce, alimony without a divorce, separate maintenance, an annulment, custody, or similar matters, guardianship or juvenile proceedings, or to proceedings brought pursuant to special statutes that provide alternate procedures for the obtaining of temporary restraining orders or temporary injunctions."). 11 We need not address various circumstances when an exercise of judicial discretion adjudicating a temporary restraining order (TRO) may be reviewed in this Court. But see, e.g., City of Midwest City v. Harris, 1977 OK 7, 561 P.2d 1357 (writ of prohibition issued to prevent enforcement of a TRO). 12 12 O.S. Supp. 2020, Ch. 15, App. 1, Okla. Sup. Ct. R. 1.60(c) ("Orders of the district court that are interlocutory and may be appealed by right in compliance with the rules in this part are those that: . . . (c) Deny a temporary injunction, grant a temporary injunction except where granted at an ex parte hearing, or discharge, vacate or modify or refuse to discharge, vacate or modify a temporary injunction....") (citing 12 O.S. §§ 952(b)(2), 993(A)(2)). 13 12 O.S.2011 § 952 (b)(2): "(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: . . . 2. An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment." 14 ROA Vol. III, p. 1018. 15 Kelsey v. Dollarsaver Food Warehouse of Durant, 1994 OK 123, 885 P.2d 1353 (Court used plain meaning and English grammar to determine meaning of language in trial court's order); Hicks v. Hicks, 1966 OK 91, 417 P.2d 830, 832-33 (when construing the judgment of a court, effect should be given to every word and part thereof, including such effects and consequences that follow the necessary legal implications of its terms; and when language is not clear a judgment should be construed so as to carry out the evident purport and intent of the action); Timmons v. Royal Globe Ins. Co., 1985 OK 76, nn.5-6, 713 P.2d 589, 591-92 (meaning of a final judgment is derived from the terms expressed in the instrument as construed with other parts of the judgment roll). 16 Edwards v. Andrews, 2016 OK 107, ¶ 7, 382 P.3d 1045, 1047 ("this Court will generally 'not review a trial court order which overrules a motion for summary judgment'"); Progressive Direct Ins. Co. v. Pope, 2022 OK 4, n.11, 507 P.3d 688, 693, ("an order denying a motion for summary judgment is not an interlocutory order immediately appealable by right nor could the order be certified for review by certiorari in advance of judgment"). 17 Andrew v. Depani-Sparkes, 2017 OK 42, ¶ 14, 396 P.3d 210, 216-17 (explaining House v. Town of Dickson, 2007 OK 57, 193 P.3d 964, and LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388). 18 12 O.S.2011 § 1654: "Any determination of rights, status, or other legal relations shall have the force and effect of a final judgment, and it shall be reviewable in the same manner as other judgments." Cf. Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, ¶ 16, 270 P.3d 113, 121-22 ("Clearly, if a public body's declaratory judgment controversy is justiciable, a qui tam taxpayer is not entitled to intervene, has no right of action . . . and has no standing as a qui tam taxpayer to challenge a judgment on the merits of the justiciable controversy."). 19 Knight ex rel. Ellis v. Miller, 2008 OK 81, 195 P.3d 372 (dismissal of the trial court petition for declaratory judgment affirmed on appeal because the action was not a case of actual controversy required by 12 O.S. §1651). 20 12 O.S.2011 § 1651: District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. 21 Macy v. Okla. City Sch. Dist. No. 89, 1998 OK 58, ¶ 11, 961 P.2d 804, 807. 22 Indep. Sch. Dist. No. 52 of Okla. Cty. v. Hofmeister, 2020 OK 56, ¶ 17, n.17, 473 P.3d 475, 485 ("Mandamus is tried as in civil actions and the merits may be adjudicated using the District Court Rule 13 procedure for summary judgment or summary disposition."); cf. Shamblin v. Beasley, 1998 OK 88, n.25, 967 P.2d 1200, 1208 ("Other jurisdictions, much like Oklahoma, do not differentiate--for summary judgment purposes--between equity suits and actions at law."); Assessor of Roger Mills Cty. v. Unit Drilling Co., 2011 OK 4, 247 P.3d 1170 (District Court declaratory judgment "after considering the summary judgment paperwork of the parties" affirmed on appeal). 23 In re Guardianship of Berry, 2014 OK 56, ¶ 41, 335 P.3d 779, 793 ("If the substance of an interlocutory order contains both adjudications of issues that are immediately appealable and adjudications on other issues that are not immediately appealable, then only that part of the order adjudicating immediately appealable claims may be reviewed on an immediate appeal of the interlocutory order."). 24 Bailey v. State ex rel. Bd. of Tests for Alcohol & Drug Influence, 2022 OK 50, ¶ 21, 510 P.3d 845, 852. 25 State ex rel. Okla. State Bd. of Med. Licensure & Supervision v. Rivero, 2021 OK 31, ¶ 41, 489 P.3d 36, 52. 26 Crawford ex rel. C.C.C. v. OSU Med. Tr., 2022 OK 25, n.1, 510 P.3d 824, 829 (citing In re Guardianship of Stanfield, 2012 OK 8, ¶ 27, 276 P.3d 989, 1001). 27 Scott v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 84, ¶ 16, 313 P.3d 891, 896 ("Granting or denying injunctive relief is generally within the sound discretion of the trial court and judgments issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or its decision is clearly against the weight of the evidence."). 28 Murlin v. Pearman, 2016 OK 47, ¶ 17, 371 P.3d 1094, 1097. 29 Johnson v. Ward, 1975 OK 129, 541 P.2d 182, 188. 30 In re Estate of Downing, 2021 OK 17, ¶ 10, 489 P.3d 9, 12; In re Estate of Foresee, 2020 OK 88, ¶¶ 7-8, 475 P.3d 862, 865. 31 Bowlin v. Alley, 1989 OK 66, 773 P.2d 365, 370 (explaining a temporary or preliminary injunction may issue pending a final adjudication of a controversy, and such injunction is issued in a summary proceeding with a less stringent burden of proof than an adjudication on the merits). 32 Revolution Res., LLC v. Annecy, LLC, 2020 OK 97, ¶ 12, 477 P.3d 1133, 1141. 33 In re L.M.A., 2020 OK 63, n.6, 466 P.3d 559, 563 (citing Lay v. Ellis, 2018 OK 83, n.3, 432 P.3d 1035 (petition in error will be deemed amended to include errors set forth in the propositions in the brief-in-chief, provided that in no event may the appeal be broader in scope than allowed by [Okla.Sup.Ct.] Rule 1.26(a)); In re Adoption of M.J.S., 2007 OK 44, n.12, 162 P.3d 211 ("Assignments of error not argued or supported in the brief with citations of authority are treated as waived."). 34 Okla. Const. Art. 2 § 7: "No person shall be deprived of life, liberty, or property, without due process of law." 35 Generally, constitutional rights are personal and not asserted vicariously. Forest Oil Corp. v. Corp. Comm'n of Okla., 1990 OK 58, 807 P.2d 774, 788. Petitioners' preserved appellate arguments do not argue in support of a cognizable joint legal interest possessed by Barnes and the school district which was adversely affected by the trial court's order, and individually addressing petitioners' arguments does not appear to alter our analysis. Barnes and the school district may both state they want relief in the nature of Barnes continuing as superintendent unfettered by State interference, but two parties seeking an identical remedy does not show an identical cause of action or legal interest. Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, n.24, 270 P.3d 113, 121 (contrasting a right to a remedy and a cause of action). 36 State ex rel. Livingston v. Maxwell, 1960 OK 122, 353 P.2d 690, 693 (discussing Jones v. Bayless, 1953 OK 92, 255 P.2d 506); cf. Burnap v. United States, 252 U.S. 512, 515, 40 S. Ct. 374, 64 L. Ed. 692 (1920) ("The power to remove is, in the absence of statutory provision to the contrary, an incident of the power to appoint . . . [and] [t]he power of suspension is an incident of the power of removal."). 37 Indep. Sch. Dist. No. 52 of Okla. Cty. v. Hofmeister, 2020 OK 56, ¶ 37, 473 P.3d at 492 (quoting Farmacy LLC v. Kirkpatrick, 2017 OK 37, ¶ 20, 394 P.3d 1256, 1261). 38 Id. 39 Except as otherwise specifically provided in 75 O.S. § 250.4, all agencies must comply with the provisions of Article I and Article II of the OAPA (75 O.S. § 250.1(B)), and the State Board of Education is exempt from Article I of the OAPA with respect to prescribing subject matter standards as provided for in 70 O.S. § 11-103.6 A. 75 O.S.§ 250.4(A)(11). 40 Okla. Admin. Code § 210:1-5-6 was amended in 2021 effective on Aug. 6, 2021, by 38 Okla. Reg. 921, with a change to paragraph (b)(4), and this amendment did not alter or amend the quoted language in § 210-1-5-6 (a) and (e). 41 Okla. Admin. Code § 210-1-5-6 (2013) (amended at 30 Okla. Reg. 1592, July 11, 2013). 42 Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518, 523 ("Administrative rules are valid expressions of lawmaking powers having the force and effect of law."); Coppola v. Fulton, 1991 OK 18, 809 P.2d 1291, 1296; Rotramel v. Pub. Serv. Co., 1975 OK 91, 546 P.2d 1015, 1017. 43 State ex rel. Okla. Dep't of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877--78 ("Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language."). 44 Prettyman v. Halliburton, 1992 OK 63, 841 P.2d 573, 580-81 (The Legislature is presumed to know previous judicial constructions of statutes when creating new statutes or amendments consistent with antecedent law.). 45 Surety Bail Bondsmen v. Ins. Comm'r, 2010 OK 73, ¶ 22, 243 P.3d 1177, 1184-85 (citing Lierly v. Tidewater Petroleum Corp., 2006 OK 47, n.8, 139 P.3d 897, 905). 46 Short, 1988 OK 89, 761 P.2d at 474-75. 47 Id. at 475. 48 Id. 49 In re A.M., 2000 OK 82, ¶ 7, 13 P.3d 484, 487. 50 Purcell v. Parker, 2020 OK 83, ¶ 19, 475 P.3d 834, 842. 51 Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). 52 Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). 53 Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997). 54 See, e.g., Al-Khouri v. Okla. Health Care Auth., 2018 OK CIV APP 10, ¶ 13, 419 P.3d 366, 372 (Approved for Publication by Oklahoma Supreme Court) ("A person or entity may have a liberty interest if its good name, reputation, honor, or integrity is at stake because of what the government is doing to him."); Primas v. City of Oklahoma City, 958 F.2d 1506, 1510 (10th Cir. 1992) (explaining Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991) (en banc) cert. denied, 502 U.S. 906, 112 S. Ct. 296, 116 L. Ed. 2d 241 (1991) (a liberty interest claim exists when a public employer takes action to terminate an employee based upon a public statement of unfounded charges of dishonesty or immorality that might seriously damage the employee's standing or associations in the community and foreclose the employee's freedom to take advantage of future employment opportunities)). 55 Respondents' appellate answer brief states a FY 2019 audit showed the school district using $8,810,000 bond election proceeds for an impermissible purpose, as well as stating the school did not provide a full-time, in-person instructional delivery to students between March of 2020 through May 2021. Facts should be referenced to an appellate record, or a described document before the Court for our review and examination. See, e.g., Okla. Sup. Ct. R. 1.11(j) ("Citations to a document in the record other than a transcript shall include the name of the document and the pages within the document to which reference is made (e.g., Petition at 17); and may include a description of the document."). 56 Berry & Berry Acquisitions, LLC v. BFN Props., LLC, 2018 OK 27, ¶ 25, 416 P.3d 1061, 1073 (equity is exercised "in light of all circumstances"). 57 District of Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018) ("The 'totality of the circumstances' requires courts to consider 'the whole picture.' . . . Our precedents recognize that the whole is often greater than the sum of its parts--especially when the parts are viewed in isolation."); Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) ("[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts."). 58 Gilbert, 520 U.S. at 929. 59 Id. at 931-32. 60 Id. at 935. 61 State ex rel. Okla. State Bd. of Med. Licensure & Supervision v. Rivero, 2021 OK 31, ¶¶ 28-30, 489 P.3d 36, 47-48 ("Exempting a constitutional issue from exhaustion is itself subject to exceptions. For examples, we have mentioned a party's ability to frame the constitutional challenge as a statutory issue in the context of an as-applied constitutional challenge instead of a facial challenge to a statute or a facially void order."). 62 Western Heights, 2007 OK CIV APP 21, ¶ 9, 156 P.3d at 55 (citing Patrick v. State Bd. of Educ., 1992 OK CIV APP 153, 842 P.2d 767 (a school superintendent filed a district court petition to review the administrative decision of the State Board of Education which ordered a two-year probation for the superintendent)). 63 The phrases gratis dictum, simplex dictum, obiter dictum are often shortened to simply "dicta" in application. These terms refer to a statement, or remark, made in a judicial opinion when the content is not necessary or essential to the logic or reasoning used in the opinion to adjudicate the actual controversy then before the court. Dictum, Blacks Law Dictionary 541 (4th ed. 1951); Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1257-58 (2006) (Judge Leval's explanation for determining whether a statement is dicta). 64 In re Estate of Bleeker, 2007 OK 68, n.25, 168 P.3d 774, 781 (noting method for determining the ratio decidendi, and explaining it is a rule of law expressly or impliedly used by the judge as a necessary step in the reasoning to support adjudication of the controversy before the court). 65 Brokers' Choice of Am. v. NBC Universal, Inc., 861 F.3d 1081, 1099 n.15 (10th Cir. 2017) (citing Bishop v. Smith, 760 F.3d 1070, 1083 (10th Cir. 2014)); Arcam Pharm. Corp. v. Faria, 513 F.3d 1, 3 (1st Cir. 2007); cf. Am. Trailers, Inc. v. Walker, 1974 OK 89, 526 P.2d 1150, 1154 ("Statements in a decision neither necessary to support the conclusion reached nor applicable to the situation are dictum, and not in any way controlling."). 66 See, e.g., Indep. Sch. Dist. No. 54 of Lincoln Cty. v. Indep. Sch. Dist. No. 67 of Payne Cty., 2018 OK 34, 418 P.3d 693 (Court classifies language in previous opinion as dicta and then explains it is not persuasive in controversy before the Court). 67 Cinco Enters., Inc. v. Benso, 1999 OK 80, ¶ 10, 995 P.2d 1080,1083--84; Handy v. City of Lawton, 1992 OK 111, 835 P.2d 870, 873. 68 Branch Trucking Co. v. State ex rel. Okla. Tax Comm'n, 1990 OK 41, 801 P.2d 686, 690--91 (explanation the Oklahoma Tax Commission was bound by a final judgment in a District Court although the judgment was inconsistent with an opinion by the Oklahoma Attorney General). 69 See, e.g., Salazar v. City of Oklahoma City, 1999 OK 20, ¶¶ 11-12, 976 P.2d 1056, 1061-62 (application of a prior legal decision for "issue-preclusive force" such as res judicata is based upon a party producing a judgment roll for an examination of claims pressed for adjudication and issues actually decided); Robinson v. Texhoma Limestone, Inc., 2004 OK 50, ¶¶ 8-12, 100 P.3d 673, 675-676 (discussing compulsory counterclaims and res judicata); City of Oklahoma City v. Robinson, 1937 OK 16, 65 P.2d 531, 533 (quoting Gille v. Emmons, 58 Kan. 118, 48 P. 569, 570 (1897) (A judgment upon a matter outside of the issues pled and tried of record must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard)); cf. Farley v. City of Claremore, 2020 OK 30, ¶ 13, 465 P.3d 1213, 1222 (in proper circumstances, res judicata may be raised as an affirmative defense on a motion to dismiss when using facts known by judicial notice). 70 Lehr v. Robertson, 463 U.S. 248, 256, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983). 71 Cole v. State ex. rel. Dep't of Pub. Safety, 2020 OK 67, ¶ 15, 473 P.3d 467, 472. 72 Turley v. Flag--Redfern Oil Co., 1989 OK 144, 782 P.2d 130, 136 ("Where injured parties have an alternative statutory remedy to claimed due process violations, procedural defects are cured by the remedy afforded." (citing Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102, 156, 95 S. Ct. 335, 365, 42 L. Ed. 2d 320, 361 (1974))). 73 Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, n. 43, 270 P.3d 113, 125; Redbird v. Okla. Tax Comm'n, 1997 OK 126, ¶¶ 10-15, 947 P.2d 525, 527-29. 74 Spencer Dev. Co. v. Indep. Sch. Dist. No. I-89, 1987 OK 70, n.5, 741 P.2d 477, 480 (citing Tryon Dependent Sch. Dist. No. 125 of Lincoln Cty. v. Carrier, 1970 OK 153, 474 P.2d 131; In re Wickstrum, 1969 OK 74, 454 P.2d 660, 664 ; Okla. Farm Bureau v. State Bd. of Educ., 1968 OK 98, 444 P.2d 182, 187; Hatfield v. Jimerson, 1961 OK 250, 365 P.2d 980, 983). 75 Okla. Const. Art. 13, § 5: "The supervision of instruction in the public schools shall be vested in a Board of Education, whose powers and duties shall be prescribed by law. The Superintendent of Public Instruction shall be President of the Board. Until otherwise provide by law, the Governor, Secretary of State, and Attorney General shall be ex-officio members, and with the Superintendent, compose the Board of Education." 76 Okla. Farm Bureau v. State Bd. of Educ., 1968 OK 98, 444 P.2d 182, 186; Indep. Sch. Dist. No. 65 of Wagoner Cty. v. State Bd. of Educ., 1955 OK 301, 289 P.2d 379 (The Legislature has plenary power with respect to the establishment and change of school districts, and it may delegate the exercise of that power to the State Board as a subordinate agent under such terms as it judges to be reasonable.). 77 Okla. Farm Bureau, 1968 OK 98, 444 P.2d at 187. 78 I.T.K., 2019 OK 59, ¶ 29, 451 P.3d at 139-40 (explaining OAC § 210:10-1-7 (2011 & 2016)). 79 Indep. Sch. Dist. No. 52 of Okla. Cty., 2020 OK 56, ¶¶ 29-39, 473 P.3d at 489-93; Sch. Dist. No. 25 v. Hodge, 1947 OK 220, 183 P.2d 575, 583-85. 80 70 O.S.Supp.2013 § 3-104(13) (as amended by Laws 2021, c. 563, § 5, emerg. eff. May 28, 2021, but not altering quoted language): "13. Have authority to require persons having administrative control of all school districts in Oklahoma to make such regular and special reports regarding the activities of the schools in said districts as the Board may deem needful for the proper exercise of its duties and functions. Such authority shall include the right of the State Board of Education to withhold all state funds under its control, to withhold official recognition, including accrediting, until such required reports have been filed and accepted in the office of said Board and to revoke the certificates of persons failing or refusing to make such reports." 81 Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518, 523 ("Administrative rules are valid expressions of lawmaking powers having the force and effect of law."); Shop & Swap Advertiser, Inc. v. Okla.Tax Comm'n, 1989 OK 81, 774 P.2d 1058 (policy order of Tax Commission reversed because agency's construction of state statute was incorrect); Daffin v. State ex rel. Dep't of Mines, 2011 OK 22, 251 P.3d 741 (administrative rule unconstitutional). 82 OAC § 210:35-3-203 (Timelines for implementing standards) (revoked at 15 Okla. Reg. 2306, June 11, 1998). 83 70 O.S.2011 § 3-104.3 (B): "State accreditation shall be withdrawn from or denied to schools or school districts that do not meet the requirements of Sections 2, 3, 6, 28, 29, 30, 44, 45, 46, 47, 48, and 49 of this act, and the State Board of Education shall take action as required by this act to ensure that students affected are enrolled in schools that are able to maintain state accreditation." 84 Grisham v. City of Oklahoma City, 2017 OK 69, n.8, 404 P.3d 843, 847 (citing Woods Dev. Co. v. Meurer Abstract, 1985 OK 106, 712 P.2d 30, 33). 85 Indep. Sch. Dist. No. 52 of Okla. Cty., 2020 OK 56, ¶ 37, 473 P.3d at 492. 86 Indep. Sch. Dist. No. 52 of Okla. Cty., 2020 OK 56, ¶ 92, 473 P.3d at 513.

2adba046-748a-4c7d-83cf-d36f0a2b7516

Galier v. Marco Wall Products

oklahoma

Oklahoma Supreme Court

GALIER v. MURCO WALL PRODUCTS2022 OK 85Case Number: 114175Decided: 10/25/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MICHAEL D. GALIER, Plaintiff/Appellee/Respondent, v. MURCO WALL PRODUCTS, INC., Defendant/Appellant/Petitioner, and WELCO MANUFACTURING CO. and RED DEVIL CORPORATION, Defendants. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Michael Galier brought a negligence and products liability action against Defendant/Appellant/Petitioner Murco Wall Products, Inc., a Texas manufacturer, alleging exposure to Murco's products caused him to contract mesothelioma. The Oklahoma County District Court denied Murco's motion to dismiss for lack of personal jurisdiction and, following a jury trial, granted judgment to Galier. The Court of Civil Appeals affirmed. This Court denied certiorari. The United States Supreme Court granted certiorari, vacated the Court of Civil Appeals' decision, and remanded for reconsideration in light of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017). The Court of Civil Appeals reaffirmed the district court. We previously granted certiorari to address whether the Court of Civil Appeals properly found that Oklahoma possesses specific personal jurisdiction over Murco. AFFIRMED. Clyde A. Muchmore, Harvey D. Ellis, Jr., Cullen D. Sweeney, Crowe & Dunlevy, Oklahoma City, Oklahoma, and Gregory L. Deans (pro hac vice) and Katherine H. Stepp (pro hac vice), Deans & Lyons, LLP, Dallas, Texas, for Defendant/Appellant/Petitioner, Murco Wall Products, Inc. Steven T. Horton, Horton Law Firm, Oklahoma City, Oklahoma, and Jessica M. Dean (pro hac vice), Charles W. Branham, III (pro hac vice), and Lisa White Shirley (pro hac vice), Dean Omar Branham & Shirley, Dallas, Texas, for Plaintiff/Appellee/Respondent, Michael D. Galier. OPINION DARBY, C.J., ¶1 Oklahoma resident, Michael Galier was exposed to asbestos in Oklahoma in the 1970s. At that time, Murco sold asbestos joint compound into Oklahoma. In 2012, Galier was diagnosed with mesothelioma. This cause arises from that injury. The question before this Court is whether Oklahoma possesses specific personal jurisdiction over the nonresident Defendant, Murco. We answer in the affirmative. I. BACKGROUND ¶2 Murco is a Texas corporation with its principal place of business in Fort Worth. Murco started making drywall joint compound in 1971. The company began with three to five employees and by 1976 had ten to twenty employees. Murco maintains limited records from its sales during the 1970s. Murco's extant records note each sale by the number of units sold, rather than purchase price. We therefore use the term "unit" throughout this opinion as a generic reference to the amount of joint compound packaged in one container; depending on the product, a unit refers to a bag between 25 and 50 pounds, a 4 gallon box, or 5 gallon bucket. ¶3 Murco first sold drywall joint compound to Oklahoma customers in 1972. During its early years, eight of Murco's eighty-five customers were located in Oklahoma. See ROA 8255, Vol. II PM Tr. of Jury Trial 109:11(May 5, 2015). From 1972 to 1973, Murco sold at least 245,599 units of product. ROA 81. Of those, 232,516 units contained asbestos. Id. And from 1972 to 1973, they sold at least 24,951 units of products containing asbestos to Oklahoma. ROA 82-89. From 1972 to 1974, that number jumps to a total of over forty thousand units of asbestos joint compound that Murco sold among eight different customers with Oklahoma addresses. See ROA 266-77. For one of those customers, Flintkote of Oklahoma City (a distributor), Murco packaged its asbestos-containing product two ways. Some were packaged with only Murco's label, and some were packaged with only the customer's private "Flintkote" label; both were available for resale in Oklahoma City.1 Between 1972 and 1974, Murco sold 23,089 units of asbestos products to Flintkote; of those, only 2,962 were labeled as a Flintkote product. ROA 268-70, 273-77. Murco sold 20,127 units of asbestos products to Flintkote labeled with Murco's label. Id. ¶4 In 1977, Murco's founder and president wrote a letter to the Consumer Products Safety Commission which stated: "Murco has one salesman, covering about a 300 mile radius of Fort Worth." Def.'s Trial Ex. 6. Murco's self-declared sales radius included most of Oklahoma. After 1978, Murco discontinued using asbestos in its drywall joint compound. ¶5 Throughout the 1970s, Galier saw Murco's name on products at various construction sites. From 1971 to 1975, Galier visited many of his father's building plots around Moore, Oklahoma, to play or help clean up after subcontractors.2 To help clean up, Galier would sweep, dust, pick up, or throw things away, often getting on his hands and knees to scrape up clumps of dried drywall joint compound off the floor. Galier and his brothers would play on the construction sites by throwing the dried clumps of drywall joint compound at each other or placing the drywall dust they had swept up (created by sanding drywall joint compound) into paper bags to throw at each other as "grenades." Later in the 1970s, Galier and his brothers accompanied their father to other building locations and swept up after the workers. ¶6 In March 2012, doctors diagnosed Galier with mesothelioma following an unrelated surgery and biopsy, performed in Oklahoma. II. PROCEDURAL HISTORY ¶7 On November 1, 2012, Galier sued Murco under theories of negligence and products liability, alleging he was harmed by exposure to Murco's products.3 Before trial, Murco moved to dismiss based on lack of personal jurisdiction. After an initial hearing on the motion, the trial court granted additional discovery. At the second hearing on the motion to dismiss, Galier argued both general and specific jurisdiction. Galier asserted that Murco should be subject to Oklahoma jurisdiction because he, an Oklahoma resident, was injured in this State by Murco's asbestos joint compound, and Murco sold similar products to customers located in Oklahoma during the same period in the 1970s. ¶8 The district court denied Murco's motion, ruling Oklahoma had general jurisdiction. See Tr. of 2d Mot. Hr'g 32-33 (June 21, 2013). After a two-week trial in May 2015, the jury found that Murco was forty percent responsible for Galier's injury and awarded damages. The district court granted judgment to Galier on July 6, 2015. ¶9 Murco appealed and the Court of Civil Appeals affirmed the district court on February 3, 2017. This Court denied certiorari on June 19, 2017. On the same day, the United States Supreme Court issued Bristol-Myers Squibb Co. v. Superior Court of California, San Franciso County, 582 U.S. ------, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (June 19, 2017), clarifying specific personal jurisdiction. Murco petitioned the United States Supreme Court for certiorari on the issue of personal jurisdiction, which the Court granted on February 3, 2018. The United States Supreme Court vacated the Court of Civil Appeals decision and remanded the case for reconsideration in light of the newly issued Bristol-Myers opinion. ¶10 Following remand, the Court of Civil Appeals determined that the Supreme Court did not intend "to establish a general rule that a plaintiff must present evidence tracing the path of an allegedly dangerous product from manufacturer to end user in order to establish specific personal jurisdiction." COCA Op. ¶ 21, July 19, 2018. COCA stated that it was not persuaded that Galier needed to present proof to the degree of specificity urged by Murco and further stated that Murco's products "did not arrive in the forum by chance or the random flow of commerce." See id., at ¶¶ 20, 22. The court noted that Murco "desired to exploit a feasible market," had "significant sales of its asbestos joint compound to Oklahoma customers," "considered shipping costs[,] and then purposefully targeted its asbestos joint compound into Oklahoma because it was within its calculated profitability zone." Id., at ¶ 22. COCA concluded by explicitly finding that Oklahoma properly exercised specific personal jurisdiction over Murco and affirming the district court again. Id., at ¶¶ 25, 72. We granted certiorari. ¶11 Murco argues that the Court of Civil Appeals acknowledged Bristol-Myers and Montgomery v. Airbus Helicopters, 2018 OK 17, 414 P.3d 824, but nevertheless essentially applied the same analysis upon which it originally affirmed the district court's determination of personal jurisdiction. Murco asserts that a nonresident's sales to third parties located in the forum, even if substantial and continuous, do not amount to specific jurisdiction unless the plaintiff can show his claimed injury arises directly from those contacts which the nonresident purposefully created in the forum. Murco emphasizes that Galier provided no evidence to show where or how any of Murco's sales contacts occurred, only that Murco had sales to third-party Oklahoma customers. Further, Murco postulates that the reference to a salesperson with a territory inclusive of Oklahoma offers no proof that this unidentified person ever created a relevant contact in Oklahoma, nor for that matter, provides any information regarding the salesperson's actions, or whether he or she ever set foot in Oklahoma, or created any sale in the forum. As a result, Murco argues that the injury did not arise out of its forum contact in order to permit Oklahoma to assert specific personal jurisdiction over it in this case. In response, Galier argues that Murco's sales ledger from 1972 to 1973 demonstrated Murco sold its products to Oklahoma customers and knew such customers would ultimately sell to subcontractors or other Oklahoma residents down the line. III. STANDARD OF REVIEW ¶12 A trial court's determination of personal jurisdiction is a question of law, which we review de novo. Montgomery, 2018 OK 17, ¶ 17, 414 P.3d, at 829; State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, ¶ 9, 237 P.3d 199, 205. We search the record for proof that the nonresident party has sufficient contacts with this state to assure that traditional notions of fair play and substantial justice will not be offended if this state exercises in personam jurisdiction. Montgomery, 2018 OK 17, ¶ 17, 414 P.3d, at 829. IV. ANALYSIS ¶13 "To establish personal jurisdiction over a non-resident defendant, both the State's long-arm statute and the requirements of federal due process must be satisfied." Native Wholesale Supply, 2010 OK 58, ¶ 10, 237 P.3d, at 205. Oklahoma's long-arm statute4 extends the jurisdiction of this State to the outer limits of the Oklahoma Constitution and the Constitution of the United States. Ibid.; 12 O.S. Supp. 2017, § 2004(F). "The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant."5 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490 (1980). ¶14 Due process requires that a nonresident defendant possess "certain minimum contacts" with the forum such that the "maintenance of the suit" is "reasonable, in the context of our federal system of government," and "does not offend traditional notions of fair play and substantial justice" in order to "subject a defendant to a judgment in personam." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316--17, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (internal citation omitted). The United States Supreme Court has long focused on the nature and extent of "the defendant's relationship to the forum State" when applying that formulation. Bristol-Myers, 137 S. Ct., at 1779. As such, the United States Supreme Court has recognized two types of personal jurisdiction: general and specific. See Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d 796 (2011). ¶15 A state court may exercise general jurisdiction when a defendant's "affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires, 564 U.S., at 919. For a corporation, the "paradigm" bases for general jurisdiction are its place of incorporation and principal place of business. Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760, 187 L. Ed. 2d 624 (2014).6 Thus general jurisdiction over Murco attaches in Texas, not in Oklahoma. ¶16 Specific jurisdiction may be exercised over defendants who are less intimately connected with the state, but only as to a narrower class of claims. Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 592 U.S. ----, 141 S. Ct. 1017, 1024, 209 L. Ed. 2d 225 (2021). The defendant must perform "some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958). The contacts must be the defendant's own choice and not "random, isolated, or fortuitous." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984). They must show that the defendant deliberately "reached out beyond" its home--by, for example, "exploi[ting] a market" in the forum State or entering a contractual relationship centered there. Walden v. Fiore, 571 U.S. 277, 285, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014) (internal quotation marks and alterations omitted). Ford Motor, 141 S. Ct., at 1025. The act by which the nonresident defendant purposefully avails himself of the privilege of conducting activities in Oklahoma, "may be shown by circumstances from which such fact may be reasonably inferred." Crescent Corp. v. Martin, 1968 OK 95, ¶ 30, 443 P.2d 111, 118; see also Marathon Battery Co. v. Kilpatrick, 1965 OK 212, ¶¶ 3, 37, 418 P.2d 900, 903, 910. ¶17 Murco contends that even though it actively sold asbestos joint compound to Oklahomans for years, Oklahoma lacks personal jurisdiction over them. Murco further claims that Galier failed to trace the Murco asbestos joint compound that he was injured by, in Oklahoma, to one of the documented sales of Murco product to Oklahoma customers. We do not agree that Galier's burden is so high because the United States Supreme Court has made it clear that the law of personal jurisdiction does not require a "tracing" as described by Murco. ¶18 Murco's contacts with Oklahoma were not random, isolated, or fortuitous. Rather, Murco chose to reach out beyond Texas and deliberately exploit the market in Oklahoma by selling over twenty-four thousand units of harmful asbestos joint compound to numerous Oklahoma customers over the course of two years. Murco also worked with a local Oklahoma company, Flintkote, to place Flintkote's label on Murco's asbestos joint compound for resale in Oklahoma. Although Galier could not produce evidence of negotiations for that contact, circumstances evince that the custom labeling was purposefully directed towards Oklahoma. Murco later disclosed its intent to sell its product to the majority of the state of Oklahoma when it purposefully assigned to one salesperson an area of Oklahoma from the southern border to within fifteen miles of Kansas. ¶19 A state may hold a nonresident company "to account" for related misconduct "[w]hen (but only when) a company 'exercises the privilege of conducting activities within a state'--thus 'enjoy[ing] the benefits and protection of [its] laws.'" Ford Motor, 141 S. Ct., at 1025 (alterations in original). This doctrine "provides defendants with 'fair warning'--knowledge that 'a particular activity may subject [it] to the jurisdiction of a foreign sovereign.' A defendant can thus 'structure [its] primary conduct' to lessen or avoid exposure to a given State's courts." Ibid. (alterations in original) (citations omitted). During the years of evidenced sales into Oklahoma, Murco enjoyed the benefits and protection of our laws--"the enforcement of contracts, the defense of property, the resulting formation of effective markets." See id., at 1029--30. Murco's continued sales into Oklahoma for several years made it foreseeable that Murco should reasonably anticipate being haled into court here. See World-Wide Volkswagen, 444 U.S., at 297; see also Ford Motor, 141 S. Ct., at 1030. Murco could have chosen to not avail itself of the privilege of conducting activities within Oklahoma to avoid potential liability if it was concerned the risks were too great. See World-Wide Volkswagen, 444 U.S., at 297; see also Ford Motor, 141 S. Ct., at 1030. But Murco chose to exploit the market for its product in this State, and it is not unreasonable to subject Murco to suit now that its merchandise was the source of injury in Oklahoma to an Oklahoma resident. See World-Wide Volkswagen, 444 U.S., at 297. Perhaps even more than Murco's sales to subcontractors, Murco's sales relationship with Flintkote, wherein Murco sold its normal product and also went the extra mile to custom label its product with a Flintkote label for resale in Oklahoma--clearly not a passive sale--shows an intent on the part of Murco to avail itself of the benefits of this forum. ¶20 Even when the defendant has purposefully availed himself of the state, the plaintiff's claims "must arise out of or relate to the defendant's contacts" with the forum in order for the state to exercise jurisdiction. Bristol-Myers, 137 S. Ct., at 1780 (quoting Daimler, 571 U.S., at 127) (alterations omitted). Murco's argument that Galier must trace the exact product he was injured by from Murco's plant in Texas to the point of exposure in Oklahoma appears to be based on a misinterpretation of Montgomery and Bristol-Myers. ¶21 Montgomery involved a Texas defendant who sold a helicopter to a Kansas company. 2018 OK 17, ¶¶ 4--5, 414 P.3d 824, 826. The Kansas company hired an Oklahoma pilot and crew to operate the helicopter in the region. Id., at ¶ 3, 414 P.3d, at 826. The helicopter was delivered to the Kansas company in Texas. Id., at ¶ 5, 414 P.3d, at 826. This Court found that the Kansas company's sua sponte act of bringing the helicopter into Oklahoma was not a basis for Oklahoma assuming personal jurisdiction over the Texas company. Id., at ¶ 36, 414 P.3d, at 834. ¶22 In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the United States Supreme Court stated that the nonresident plaintiffs had not cited any evidence to show how the pills they took were distributed to the pharmacies which sold them the pills. 137 S. Ct. 1773, 1783, 198 L. Ed. 2d 395 (2017). Bristol-Myers involved resident and nonresident plaintiffs with similar claims against a nonresident defendant. The nonresident plaintiffs were not prescribed pills in the forum, did not purchase pills in the forum, did not ingest pills in the forum, and were not injured by pills in the forum. The Court found that the "mere fact that other plaintiffs were prescribed, obtained, and ingested [pills in the forum]--and allegedly sustained the same injuries as did the nonresidents--does not allow the State to assert specific jurisdiction over the nonresidents' claims." Bristol-Myers, 137 S. Ct., at 1781. The nonresident plaintiffs showed zero connection of their own to the forum. The Court noted that "What is needed--and what is missing here--is a connection between the forum and the specific claims at issue." Bristol-Myers, 137 S. Ct., at 1781. The United States Supreme Court "found jurisdiction improper in Bristol-Myers because the forum State, and the defendant's activities there, lacked any connection to the plaintiffs' claims." Ford Motor, 141 S. Ct., at 1031. ¶23 Galier is a resident of Oklahoma. He was exposed to the defective product in Oklahoma. He suffered injuries from the product in Oklahoma. In sum, Galier "brought suit in the most natural State--based on an 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place' there." See Ford Motor, 141 S. Ct., at 1031 (quoting Bristol-Myers, 137 S. Ct., at 1781). Murco admits that it had contacts with Oklahoma. Murco essentially questions whether those contacts are related enough to Galier's suit. ¶24 Recently, the United States Supreme Court clarified in Ford Motor Co. v. Montana Eighth Judicial District, the type of connection required and elucidated the meaning of the phrase "arise out of or relate to." See Ford Motor, 141 S. Ct. 1017. The Supreme Court clarified that "None of our precedents has suggested that only a strict causal relationship between the defendant's in-state activity and the litigation will do." Ford Motor, 141 S. Ct., at 1026. The Court explained that the first part of the arise out of or relate to standard "asks about causation; but the back half, after the 'or,' contemplates that some relationships will support jurisdiction without a causal showing." Ford Motor, 141 S. Ct., at 1026. The Court noted that indeed, [it] has stated that specific jurisdiction attaches in cases identical to the ones here--when a company like Ford serves a market for a product in the forum State and the product malfunctions there. In World-Wide Volkswagen, the Court held that an Oklahoma court could not assert jurisdiction over a New York car dealer just because a car it sold later caught fire in Oklahoma. 444 U.S., at 295, 100 S. Ct. 580. But in so doing, we contrasted the dealer's position to that of two other defendants--Audi, the car's manufacturer, and Volkswagen, the car's nationwide importer (neither of which contested jurisdiction): "[I]f the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in [several or all] other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others." Id., at 297, 100 S. Ct. 580. Or said another way, if Audi and Volkswagen's business deliberately extended into Oklahoma (among other States), then Oklahoma's courts could hold the companies accountable for a car's catching fire there--even though the vehicle had been designed and made overseas and sold in New York. For, the Court explained, a company thus "purposefully avail[ing] itself " of the Oklahoma auto market "has clear notice" of its exposure in that State to suits arising from local accidents involving its cars. Ibid. And the company could do something about that exposure: It could "act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are [still] too great, severing its connection with the State." Ibid. Ford Motor, 141 S. Ct., at 1027. ¶25 Here, Murco's sales to Oklahoma customers were not isolated, but rather related to Murco's efforts to serve the market for asbestos joint compound in Oklahoma. Murco deliberately extended its business into Oklahoma, purposefully availing itself of Oklahoma's market. Murco's contacts with Oklahoma regarded only the sale of their drywall product. Galier's cause of action related to those contacts. The cases do not require a direct link between Murco's sales to Oklahoma buyers and Galier's exposure to the asbestos. ¶26 Even when the defendant has purposefully availed himself of the forum and the case arises out of or relates to those contacts, the court must still consider a variety of "reasonableness" interests to determine if personal jurisdiction is present. World-Wide Volkswagen, 444 U.S., at 292. These gestalt factors include the burden on the defendant to litigate there, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Ibid.; Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033, 94 L. Ed. 2d 92 (1987). ¶27 The burden on Murco to defend in Oklahoma is minimal. The trial occurred within Murco's own chosen radius for conducting business sales. Oklahoma has a substantial interest in adjudicating this case; Oklahoma has an interest in protecting its citizens, and the exposure and resulting diagnosis both occurred in Oklahoma to an Oklahoma resident. Galier's interest in convenient relief is also substantial as he lives in Oklahoma and he was injured in Oklahoma. Further, the judicial system's interest in efficient resolution of the controversy demands upholding the ruling on personal jurisdiction as re-starting this litigation in Texas would be an unwarranted drain on their judicial system. V. CONCLUSION ¶28 For all the reasons we have given, the connection between Galier's claim and Murco's sales to Oklahomans--or otherwise said, the "relationship among the defendant, the forum, and the litigation"--supports specific jurisdiction. See Walden v. Fiore, 571 U.S. 277, 284, 134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12 (2014) (internal quotation marks omitted). The judgment of the Court of Civil Appeals is vacated and the trial court is affirmed. AFFIRMED. Darby, C.J., Kane, V.C.J., Winchester, Edmondson, Gurich, Rowe, Kuehn (by separate writing), JJ. and Lewis, S.J., concur; Kauger, J., recused; Combs, J., disqualified. FOOTNOTES 1 Galier does not base his claims of exposure on any product packaged with Flintkote's private label. 2 Galier did not know the specific source of the Murco products he saw on construction sites or whether the Murco drywall joint compound he was exposed to contained asbestos or not. The records for Town Craft Homes, Galier's father's company, are nonextant due to a tornado; so there is no record of any worker it hired, product it used, or location where it may have purchased any building materials. Galier's exposure to asbestos was a fact question the jury answered in Galier's favor and is not an issue before this Court. 3 Galier also sued Welco Manufacturing (drywall joint manufacturer) and Red Devil Corporation (caulk manufacturer). The jury found Welco Manufacturing 60% responsible for Galier's injury and Red Devil Corporation not liable. Welco Manufacturing was part of the initial appeal to the Court of Civil Appeals, but did not appeal to the United States Supreme Court or participate in further appeals after remand. 4 "A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States." 12 O.S. Supp. 2017, § 2004(F). 5 The Due Process Clause of the United States Constitution, U.S. Const. amend. XIV, § 1, provides that no state shall "deprive any person of life, liberty, or property without due process of law." 6 "The exercise of general jurisdiction is not limited to these forums; in an 'exceptional case,' a corporate defendant's operations in another forum 'may be so substantial and of such a nature as to render the corporation at home in that State.'" BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558, 198 L. Ed. 2d 36 (2017). KUEHN, J., SPECIALLY CONCURRING: ¶1 I agree with the Majority that specific personal jurisdiction lies here. Murco's minimum contacts with Oklahoma establish that it purposefully availed itself of the Oklahoma forum, and there is sufficient connection between those contacts and the cause of action to satisfy the requirement that the suit arises from or relates to Murco's activities within the forum. Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 592 U.S. ___, 141 S. Ct. 1017, 1026 (2021); Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. __, 137 S. Ct. 1773, 1780 (2017). ¶2 The Majority extensively quotes language from Ford involving the phrase "arises from or relates to." All the Justices in Ford agreed that, no matter how one reads that phrase, its requirement was met. The same is true of this case. I would reserve discussion of this phrase for a case where any possible jurisprudential distinction between and "arise" and "relate" would affect the outcome. ¶3 However, I tend to agree with Justice Gorsuch's broad observation in Ford that, given the rise of national and multinational corporations and the Internet, it may be time to reexamine the overall test for corporate jurisdiction. Ford, 141 S. Ct. at 1038 (Gorsuch, J., concurring). In my view, we can resolve most of these disputes by using common sense: if you bring your toys to the sandbox, you play by the sandbox rules. If a corporation purposefully avails itself of a state forum, and if the plaintiff or injury is connected to that forum, then the corporation is subject to suit there. For example, Corporation actively does business in Oklahoma, Kansas, and Nevada. Plaintiff is an Oklahoma citizen who crosses the border to Kansas, and buys and is injured by Corporation's product there. Under sandbox rules, Plaintiff may sue Corporation in Oklahoma, where Plaintiff lives and Corporation does business, or in Kansas, where Corporation does business and Plaintiff was injured. But Plaintiff can't sue in Nevada; neither Plaintiff nor the injury have any connection to that forum. I believe that this captures the essence of both Ford and Bristol-Myers.

0cbec559-985c-4eb4-9017-00b8b6341d34

Laubach v. Laubach

oklahoma

Oklahoma Supreme Court

LAUBACH v. LAUBACH2022 OK 78Case Number: 117545; Cons. w/117654Decided: 09/27/2022THE SUPREME COURT OF THE STATE OF OKLAHOMA NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. MARIA A. LAUBACH, Petitioner/Appellee, v. PAUL W. LAUBACH, Respondent/Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III Honorable, Ryan D. Reddick, Trial Judge ¶0 After the appellant, Paul Laubach (father), and the appellee, Maria Laubach (mother) divorced, the mother sought approval from the trial court to move across the state with their children. The father objected. Among the numerous orders issued by the trial court in this cause was a minute order filed on April 17, 2018. After the father's appeal culminated in two consolidated cases, the Court of Civil Appeals dismissed a portion of the appeals when it held that the April 17, 2018, minute order was an appealable order which was appealed out of time. Consequently, it dismissed the portion of the father's appeals which transpired from that order. We granted certiorari for the limited purpose of addressing the appealability of such court minutes, minute orders, minutes, and summary orders. We hold that trial court rulings which include the title court minute, minute order, minute, or summary order are not appealable orders which trigger the time to appeal. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; REASSIGNED TO THE COURT OF CIVIL APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Eric N. Edwards, Enid, Oklahoma, for Respondent/Appellant. Craig Box, Julia C. Rieman, Enid, Oklahoma, for Petitioner/Appellee. KAUGER, J.: ¶1 We granted certiorari for the limited purpose of addressing whether written instruments titled court minute, minute order, minute, or summary order, may ever serve as an appealable order, so as to trigger the time to appeal. We hold that they do not. Consequently, we vacate the Court of Civil Appeals opinion, and remand this cause to the Court of Civil Appeals for proceedings consistent with this opinion.1 FACTS ¶2 The petitioner/appellee, Maria A. Laubach (mother) filed for divorce from the respondent/appellant, Paul W. Laubach (father), on March 17, 2016. The parties divided their property by agreement, leaving the issue of custody to be tried on November 14-15, 2016. At the time of the hearing, the mother indicated to the trial court that she intended to relocate from Enid to Edmond after the divorce for employment opportunities. The trial court entered an order awarding the mother custody of the parties' children and set forth the father's visitation. ¶3 However, on May 15, 2017, the mother filed a notice of her intent to relocate with the children from Enid, across the state to Oologah, Oklahoma, because she had purchased a business there. The father filed an objection, and the trial court set the issue for hearing on April 9 and 10, 2018. On April 6, 2018, the father responded to the mother's relocation request by filing a motion to modify custody, arguing that the mother's relocation plan to move to Oologah, three hours away from him, was a substantial and material change adverse to the best interests of the children. ¶4 After a two day hearing, the trial court granted the mother's request to relocate, and denied the father's motion to modify custody. The court filed a minute order on April 17, 2018, which reflected its ruling on the hearing. It is this order we are addressing. ¶5 Subsequently, several other hearings were held, and the trial court entered a multitude of orders. The cause eventually culminated in two appeals: appeal number 117,545 filed on November 21, 2018, concerning whether the trial court erred in denying the father's petition to vacate custody order and previously filed motion for a new trial; and appeal number 117,654, on January 2, 2019, concerning whether to vacate another custody order and another previously filed motion for new trial. We consolidated the appeals on January 9, 2019, and assigned them to the Court of Civil Appeals on October 16, 2019. On October 18, 2021, the Court of Civil Appeals issued an opinion affirming the trial court in part and dismissing a portion of the appeal in part. We granted certiorari on June 27, 2022.2 TRIAL COURT RULINGS WHICH INCLUDE THE TITLE "COURT MINUTE," "MINUTE ORDER,""MINUTE," OR "SUMMARY ORDER" ARE NOT APPEALABLE ORDERS WHICH TRIGGER THE TIME TO APPEAL. ¶6 The mother argues that because the trial court's April 17, 2018, minute order was the equivalent of an appealable order, the appellant missed his opportunity to appeal that ruling and that portion of the appeal must be dismissed. The father disagrees. ¶7 For a trial court ruling to trigger the jurisdictional commencement of the time to appeal, it must be a judgment, decree, or appealable order, which has been reduced to a writing in conformance with 12 O.S. Supp. 2007 §696.3.3 Codified in 1993, this statute requires an appealable order, decree, or judgment to have a caption including the name of the court, the names and designation of the parties, the file number of the case, and title of the instrument.4 It further requires a statement of disposition, including the relief awarded, signature and title of the court and other matters approved by the court.5 Additionally, 12 O.S. Supp. 2007 §696.2 provides what shall not constitute a judgment, decree or appealable order. It provides in pertinent part: D. The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal. The following shall not constitute a judgment, decree or appealable order: A minute entry; verdict; informal statement of the proceedings and relief awarded, including, but not limited to, a letter to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order.6 In conjunction with these statutes, Oklahoma Supreme Court Rule 1.21 O.S. Supp. 2021, App. 1, art. II, also provides in pertinent part: (a) District Court Appeals. An appeal from the district court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty days from the date the judgment, decree, or appealable order prepared in conformance with 12 O.S. § 696.3 was filed with the clerk of the district court. 12 O.S. § 990A. . . .7 ¶8 By order, 2021 OK 41, effective July 15, 2021, we amended Rule 1.21 to mirror the statutes, adding language to clarify that a minute, minute order or minute entry, among other informal writings, could not qualify as an appealable order which would trigger the time to commence for filing an appeal. The amendment provides in pertinent part: . . .The following shall not constitute a judgment, decree or appealable order: minute orders or minute entries; docket entries or docket minutes; a verdict; an informal statement of the proceedings and relief awarded, including, but not limited to, summary orders or summary minutes, or a letter or other writing to a party or parties indicating the ruling or instructions for preparing the judgment, decree or appealable order. 12 O.S. §696.2. The date of filing of a judgment, decree or appealable order with the clerk of the district court shall be presumed to be the date of the district court clerk's file stamp thereon. . . Prior to the 2021 amendment to the Rule, the Rule did not mention minutes, minute orders, or docket entries, or informal statements, etc.8 ¶9 In Mansell v. City of Lawton, 1994 OK 75, 877 P.2d 1120, we described minute entries as usually a function of a court clerk, which often has a title of court minute order, court minute, minute order, minute or it may have no title. A minute contains a brief description of the order or judgment rendered but does not generally meet the statutory requirements for a certain form to be appealable. ¶10 In Mansell, supra, the trial court signed a court minute sustaining a motion to dismiss on October 7, 1993, and a journal entry of judgment was filed on October 15, 1993. The court minute had no title, but the journal entry of judgment satisfied the form required by statute as triggering the time to appeal. The Court said that if "an order has no title, or bears a title in some form using the word 'minute' and otherwise meets the description of a minute, we believe the Legislature intended it not to be appealable." We held that even though it may have been considered to be appealable prior to the 1993 enactment of §§696.2 and 696.3, the minute entry in Mansell, supra, was not in a from qualifying as an appealable order. The journal entry did, however, meet the from requirements and was the order which triggered the time to appeal. ¶11 The writing in question must meet the statutory requirements because it is a jurisdictional predicate to an appeal.9 There are some written instruments which we follow the clear language within it to construe it,10 or which substance rules over form when evaluating documents filed in this Court.11 However, in Corbit v. Williams, 1995 OK 53, 897 P.2d 1129, a cause involving an appeal from an instrument titled "Court Minute," we made it abundantly clear that after the statutory 1993 Legislative enactments, this Court would not be examining the contents of each instrument labeled "minute" to determine appealability. Nor would we be creating a body of caselaw delineating the type of minutes which are appealable and non-appealable.12 Rather, we recognized the Legislature's creation of a bright line rule to distinguish appealable orders from the non-appealable orders we had recognized in the past. ¶12 Recently in Moore v. Haley, 2021 OK 37, 505 P.3dd 918, we issued an order to allow an appellant the opportunity to obtain an appealable order after the order which the appellant attached to the Petition in Error was rejected. It was a summary order which did not comply with the statutory requirements because it did not contain the full caption of the case, the full names of the parties or counsel appearing, or the full name of the assigned judge. ¶13 Describing such orders we said: ¶3 Many times, Summary Orders are illegible and may be followed with a formal, typed Journal Entry of Judgment. This creates uncertainty for litigants and the appellate courts about the finality of the Summary Order, and the computation of appeal time. Sometimes Summary Orders may include language indicating a subsequent order should follow and other times they do not. The Summary Orders typically do not contain evidence of service on the parties. The title of the document "Summary Order" denotes that this is an abbreviated account of the ruling of the court conducted without legal formalities. ¶4 The use of the Summary Order form has long created problems and confusion for the appellate courts and a hardship on the parties attempting to appeal from a final order. These documents are most analogous to a court minute or informal statement of proceedings which are not considered appealable orders. . . . Prospectively, we will not recognize a filed Summary Order as a final judgment under 12 O.S.2011 § 696.3. (Footnote omitted.) ¶14 To reiterate the rationale of Mansell, supra, Corbit, supra, and Moore, supra, today, we again definitively pronounce that written instruments titled "court minute," "minute order," "minute,"or "summary order" cannot meet the definition of an order which triggers the procedural time limits for appeal, regardless of their substance, content, for length. We make no determination on the merits of the appellant's challenges to the substance of the trial court rulings relating to these appeals. Rather, we remand the matter to the Court of Civil Appeals for resolutions of the merits of the appellant's assignments of error pertaining to his appeal because it erred when it determined that the April 17, 2018, minute order was an appealable order for purposes of triggering the procedural time limits for appeal, thus precluding consideration of subsequent orders and the merits of the father's appeals. Accordingly, the father's failure to appeal the April 17, 2018, minute order is not dispositive as to the timeliness of his appeals.13 CONCLUSION ¶15 Written instruments titled "court minute," "minute order," "minute," or "summary order" cannot meet the definition of an order which triggers the procedural time limits for appeal, regardless of their substance, content, or length. Accordingly the Court of Civil Appeals' determination that the April 17, 2018, minute order was an appealable order for purposes of triggering procedural time limits for appeals was in error. We remand this cause to the Court of Civil Appeals for resolutions of the merits of the appellant's assignments of error pertaining to his appeals. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; REASSIGNED TO THE COURT OF CIVIL APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL JUSTICES CONCUR. FOOTNOTES 1 Title 12 O.S. 2011 App. 1, Rule 1.180 provides in pertinent part: . . .(b) Review on Certiorari. Issues not presented in the petition for certiorari may not be considered by the Supreme Court. Provided, however, if the Court of Civil Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may--should it vacate the opinion of the Court of Civil Appeals--address such undecided matters or it may remand the cause to the Court of Civil Appeals for that Court to address such issues. The case will then be decided on the reviewable issue or issues presented in the briefs theretofore filed, unless for good cause the filing of additional briefs be then allowed. The Supreme Court may--should it vacate the opinion of the Court of Civil Appeals--address any issue properly raised in the appeal or on certiorari. Hough v. Leonard, 1993 OK 112, 867 P.2d 438. 2 The order granting certiorari signed on June 27th and filed on June 28, 2022, contains a scriveners error mistakenly referring to January 27, 2022, rather than June 27, 2022. 3 Title 12 O.S. Supp. 2007 §696.3 provides: A. Judgments, decrees and appealable orders that are filed with the clerk of the court shall contain: 1. A caption setting forth the name of the court, the names and designation of the parties, the file number of the case and the title of the instrument; 2. A statement of the disposition of the action, proceeding or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or parties, including the amount of any prejudgment interest; 3. The signature and title of the court; and 4. Any other matter approved by the court. B. Judgments, decrees and appealable orders that are filed with the clerk of the court may contain a statement of costs, attorney fees and interest other than prejudgment interest, or any of them, if they have been determined prior to the time the judgment, decree or appealable order is signed by the court in accordance with this section. C. The clerk shall endorse on the judgment, decree or appealable order the date it was filed and the name and title of the clerk. D. A file-stamped copy of the judgment, decree, or appealable order shall be served upon all parties, including those parties who are in default for failure to appear in the action, as provided in Section 696.2 of this title. Title 12 O.S. Supp. 2007 §696.2 provides in pertinent part: A. After the granting of a judgment, decree or appealable order, it shall be reduced to writing in conformance with Section 696.3 of this title, signed by the court, and filed with the court clerk. The court may direct counsel for any party to the action to prepare a draft for the signature of the court, in which event, the court may prescribe procedures for the preparation and timely filing of the judgment, decree or appealable order, including, but not limited to, the time within which it is to be submitted to the court. If a written judgment, decree or appealable order is not submitted to the court by the party directed to do so within the time prescribed by the court, then any other party may reduce it to writing and submit it to the court. . . . 4 See note 3, supra, 12 O.S. Supp. 2007 §696.3. 5 See note 3, supra, 12 O.S. Supp. 2007 §696.3. 6 This language was included in the original 1993 enactment of the statute, effective October 1, 1993, 12 O.S. Supp. 1993 §696.2. 7 See also Oklahoma Supreme Court Rule 1.23, 12 O.S. Supp. 2021, App. 1, art. II Commencement of Appeal. 8 Rule 1.21, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2013, App. 1, provided in pertinent part: a) District Court Appeals. An appeal from the district court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty days from the date the judgment, decree, or appealable order prepared in conformance with 12 O.S.2001 § 696.3 was filed with the clerk of the district court. 12 O.S. 2001 § 990A. The date of filing of a judgment, decree or appealable order with the clerk of the district court shall be presumed to be the date of the district court clerk's file stamp thereon. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to the appellant, and the court records do not reflect the mailing of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealble order, the petition in error may be filed within thirty (30) daysafter the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to the appellant. 12 O.S.2001 § 990A. See Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194. For cross or multiple appeals Rule 1.27 is applicable. The interval allowed for filing a petition in error may not be extended by either the district court or the Supreme Court. The times to appeal final orders of tribunals other than the district court (for example, Corporation Commission, Tax Commission, and Court of Tax Review) are governed by the specific statutory authority for such appeals, except when these Rules specifically authorize a different period. See Part IV of these Rules. . . . The remainder of the Rule concerns appeals from Driver's License Orders, Water Conservancy Decisions, County Excise Board Budget Setting Appeals, Workers' Compensation Court , and Contempt and Juvenile Delinquency Appeals. 9 Aven v. Reeh, 1994 OK 67, ¶6, 878 P.2d 1069. 10 Aven v. Reeh, see note 9, at ¶4, See, Lemons v. Lemons, 1951 OK 300. ¶11, 238 P.2d 790. 11 Corbit v. Williams, 1995 OK 53, ¶6, 897 P.2d 1129, Markwell v. Whinery's Real Estate, Inc., 1994 OK 24, ¶6, 869 P.2d 849. 12 In Manning v. State ex rel. Dept. of Public Safety, 1994 OK 62, 876 P.2d 667, the Court did review a journal entry for the meaning and effect of its content and substance, rather than upon its form or title, but the journal entry at issue was memorialized before the statutory codification of 12 O.S. Supp. 1993 §296.2 became effective on October 1, 1993. 13 Because we remand the matter to the Court of Civil Appeals, we need not address the appellee's motion for appeal-related attorneys' fees filed on November 1, 2021. Even when a ruling by the trial court is enforceable when pronounced, it may not be appealable unless the ruling resulted in a properly filed order. See, Alexander v. Alexander, 2015 OK 52, ¶16, 357 P.3d 481.